Citation Nr: 21015347 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-35 088 DATE: March 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to October 4, 2017, is granted. FINDING OF FACT Prior to October 4, 2017, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating on an extraschedular basis prior to October 4, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to April 1984, March 1990 to June 1990, January 1991 to February 1991, and for several days in February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran a TDIU rating. A Board hearing was held in March 2018. A transcript is of record. In March 2020, VA notified the Veteran that the Veterans Law Judge (VLJ) who conducted the hearing was no longer employed by the Board and that he had a right to another hearing. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume he did not want a second hearing. The Veteran did not submit a response or has otherwise indicated he wanted a new hearing. Relevantly, an August 2020 Board decision granted a schedular TDIU rating from November 1, 2018, and remanded entitlement to a TDIU rating on an extraschedular basis prior to October 4, 2017, to the Agency of Original Jurisdiction (AOJ). Specifically, the Board referred the Veteran’s claim to the Director of the Compensation Service for extraschedular consideration of a TDIU rating. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a preliminary matter, the Board notes that the Veteran filed an application for a TDIU rating in June 2012. He contends that his service-connected bilateral hip condition and left ankle sprain render him unable to obtain and retain substantially gainful employment. For various periods since that filing, the Veteran has been assigned temporary, schedular total disability ratings for the left hip (February 6, 2012 to February 28, 2013), left ankle (November 29, 2012 to February 28, 2013), and right hip (October 4, 2017 to October 31, 2018). For those periods, the question of entitlement to TDIU is moot, as such would be duplicative of the assigned schedular evaluations. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Further, entitlement to special monthly compensation on a statutory housebound basis has been considered and assigned as appropriate throughout the appellate period. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73. Prior to October 4, 2017, the Veteran did not meet the schedular criteria for TDIU. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in August 2020. See 38 C.F.R. § 4.16(b). The Director denied entitlement to extraschedular TDIU prior to October 4, 2017. See August 2020 Administrative Decision. As of March 1, 2013, the Veteran was service connected for the following disabilities: left hip degenerative joint disease; left ankle sprain; a painful or unstable left hip scar, and other scars of the left hip and left ankle. The Veteran has alleged that he cannot work due to his left ankle and left hip disabilities, to include the resulting pain. See Board hearing Tr. at 5. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to October 4, 2017. The Veteran has completed 11 years of grade school. See June 2012 VA Form 21-8940. He worked as a cook and dishwasher until 2003 when he started as a housekeeper. See Board hearing Tr. at 4. In January 2012, he had surgery on his left hip and sought medical retirement from his housekeeper position. See June 2012 VA Form 21-8940; see also May 2012 VA treatment records. A review of his work history shows that the Veteran’s occupational ability were focused on physically demanding positions. Indeed, the Veteran has stated that he does not have the requisite education or experience suitable for a sedentary work environment. See Board hearing Tr. at 8. VA examiners throughout the appellate period have noted that the Veteran’s hip and ankle disabilities impair his ability to walk for more than a few yards or sit for more than two hours. See September 2012, March 2014, and October 2017 VA examination reports. He has difficulty climbing stairs and cannot bend at all. Id. A VA physician noted that the Veteran’s disability would force him to become immobile after three hours of work due to the Veteran’s pain from his left hip and left ankle. See March 2013 VA treatment record. This immobility can last for up to a week. See Board hearing Tr. at 5. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran, his treatment providers, and the VA medical examiners probative as to the Veteran’s functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected left ankle and left hip prevented him from obtaining and maintaining substantially gainful employment prior to October 4, 2017. Accordingly, the criteria for TDIU on an extraschedular basis have been met prior to October 4, 2017, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.