Citation Nr: 21015141 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-10 619 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability on an extraschedular basis is granted. FINDING OF FACT Prior to his death, the Veteran was unable to secure and follow a substantially gainful occupation due solely to service-connected disability. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1962 to May 1965. He died in February 2013. The appellant claims as the surviving spouse. This matter was previously before the Board in June 2019. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an March 2020 order, the Court remanded the case to the Board for action consistent with a February 2020 Joint Motion for Remand (JMR). 1. Entitlement to a total disability rating based on individual unemployability on an extraschedular basis It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 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). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Board may review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination on this matter. Anderson v. Shinseki, 22 Vet. App. 423 (2009). The 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). Here, the Veteran was service-connected for a single disability, spondylolisthesis of L5 on S1, rated as 20 percent disabling. This does not meet the schedular requirement for TDIU. During adjudication of the claim, the RO obtained a determination from the Director. The Director found that an extraschedular TDIU was not warranted because the record did not show that the symptomatology reported caused the Veteran to be unable to work under any circumstances. Per the Veteran’s VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran stopped working driver in 2002. Prior to that he worked as a truck driver. He completed one year of high school, with no other specialized training or education. Other records, including SSA disability records, indicate that the Veteran stopped working due to a neck injury, which is not service-connected. The Veteran received a VA examination for his spine in July 2011. During the examination he reported that he experienced flare-ups of his back pain every 2-3 weeks, which lasted several hours at a time. He further reported that he could walk only a few yards without resting. In a lay statement submitted by the appellant, she reported that the Veteran required a motorized scooter when he went shopping, due to his difficulty walking for long periods. A medical opinion submitted in August 2017 stated that the Veteran was at least as likely as not unable to secure or follow substantially gainful employment, to include sedentary employment, as a result of complications related to his cervical and lumbar spine disabilities. No rationale was provided for this conclusion. The Board finds that the preponderance of the evidence weighs in favor of a finding that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected spondylolisthesis. The Veteran had limited education and work experience, meaning it would have been difficult for him to find a new job. His spondylolisthesis severely limited his ability to engage in even light physical activity, including walking. The Board has considered the Central Office determination as to extraschedular TDIU and disagrees with the Director’s opinion and findings. While the record is clear that the Veteran did not stop working in 2002 due to his back disability, the evidence is also clear that his back disability symptoms were severe enough during the period that the disability was service-connected that they rendered him unable to work, without consideration of any other disability. TDIU on an extraschedular basis is therefore granted for the period March 16, 2011 to February 15, 2013. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.