Citation Nr: 21014872 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-40 997A DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to September 1, 2015, on an extraschedular basis, is granted. FINDING OF FACT For the entire appeal period, the Veteran’s service-connected disorders precluded him from securing or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to September 1, 2015, on an extraschedular basis, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to January 1971 and from April 1971 to April 1997. 1. Entitlement to a TDIU rating prior to September 1, 2015 Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). As a preliminary matter, the Veteran has been granted entitlement to a TDIU rating since September 1, 2015. See April 2020 Rating Decision. From February 28, 2011, the date of Veteran’s increased rating claim, to September 1, 2015, the Veteran has a combined rating of 60 percent based on his lumbar spine disability, evaluated as 20 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; right lower extremity sciatica, evaluated as 10 percent disabling; DDD of the left wrist, evaluated as 10 percent disabling; acne vulgaris, evaluated as 10 percent disabling; and residuals of a fracture of the finger, evaluated as noncompensable. Therefore, prior to September 1, 2015, the Veteran does not meet the schedular criteria for a TDIU rating. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a December 2020 memorandum, the Director of Compensation Services denied the Veteran’s claim for a TDIU rating on an extraschedular basis. As the Board is not bound by the opinion of the Director, it must conduct a de novo review of the issue of an extraschedular award of TDIU prior to September 1, 2015. Wages v. Shinseki, 27 Vet. App. 233 (2015). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In his May 2019 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran contended that he became too disabled to work February 1, 2011. In this regard, he reported that he completed one year of college and received extensive training in the Aircraft Maintenance field while in the military. Upon a review of the record, the Veteran worked at an Army Air Force Exchange, in a warehouse, from April 1997 to December 2010. In his VA Form 21-8940, the Veteran indicated that he last worked full time in August 2010, in which he took a leave of absence when his wife was in her final stage of cancer. The Veteran reported that he intended to return to work in March 2011; however, he injured his back in February 2011. At that point, the Veteran was limited in activities he was able to do and was unable to go to work. At an August 2011 VA examination, the Veteran reported he was unable to work as he had pain with lifting and carrying. The examination reported noted that the Veteran’s back disability caused decreased mobility, weakness or fatigue, decreased strength, which severely affected his ability to do chores, travel and groom. Furthermore, his disability had a moderate impact on shopping, exercise, traveling, bathing, dressing and driving. It was noted that the Veteran’s left wrist disability had no significant effects on his ability to work. However, the November 2012 VA examination noted that the Veteran did not have a predominant service-connected disability that may render him unable to secure and maintain substantially gainful employment. However, the November 2019 VA examiner provided that the Veteran’s spine disability impacted his ability to work such that he was unable to stand more than 5 minutes, walk more than 10 minutes, run, climb, or squat. Finally, the Board notes that a statement by the Veteran’s son, submitted in July 2011, indicates that the Veteran’s back pain forced him to retire from working permanently. In the July 2020 remand, the Board made the following favorable finding for the Veteran: Based on the assessment of the August 2011 VA examiner’s opinion of the functional impact that the Veteran’s back disability and associated bilateral lower extremity, the Board finds that such renders him unable to perform physical or manual labor. While the November 2012 VA examiner found that no predominant service connected disability prevented the Veteran from working and his left lower extremity radiculopathy did not impact his ability to work; the Board finds that such examiner did not consider whether the Veteran’s service connected back disability at the time impacted his ability to work. Furthermore, the Board finds that such disabilities render him unable to carry or lift which renders him unable to perform physical or manual labor. As a result of the Board’s previous favorable finding, and resolving reasonable doubt in the Veteran’s favor, his service-connected disorders including a lumbar spine disorder; radiculopathy of the left and right lower extremities; a left wrist disorder; acne; and residuals of a broken finger; precluded him from securing or maintaining a substantially gainful occupation from February 28, 2011, to September 1, 2015. As such, TDIU on an extraschedular basis is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.