Citation Nr: 21015458 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-02 319 DATE: March 17, 2021 ORDER For the period since October 4, 2011, but not earlier, entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Since October 4, 2011, but not earlier, the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent her from securing or following substantially gainful employment. CONCLUSION OF LAW Since October 4, 2011, but not earlier, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to October 1991 and from January 1991 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision. The Veteran testified at a Travel Board hearing in January 2017 in Detroit, Michigan. In July 2020, the Board granted a TDIU from May 12, 2020, forward, and remanded the issue of entitlement to a TDIU prior to that date for extraschedular consideration. As explained in the July 2020 Board decision, the issue of entitlement to a TDIU was raised in the context of the Veteran’s claim of a higher rating for her hypertension. That claim was received on April 22, 2010. *** A total disability rating may be assigned where the schedular 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 service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16(a). Prior to May 12, 2020, service connection is in effect for major depressive disorder (50 percent, since October 4, 2011), hypertension (10 percent), sleep apnea (noncompensable), for combined ratings of 10 percent (prior to October 4, 2011) and 60 percent (from October 4, 2011, forward). As such, the Veteran does not meet the criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Nevertheless, it is VA’s established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In July 2020, the Board remanded the issue of entitlement to a TDIU prior to May 12, 2020, for extraschedular consideration. In October 2020, the AOJ recommended that entitlement to an extraschedular TDIU be granted from October 4, 2011. 10/13/2020, VA Memo. In December 2020, the Director, Compensation Service, disagreed with the AOJ’s recommendation to grant TDIU and stated that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment and denied TDIU. 12/10/2020, VA Memo. This case has now been returned to the Board for further review. In this regard, although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director’s decision is in essence a decision by the AOJ and is no different than a RO’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. *** The evidence of record establishes that the Veteran worked from 1996 to 2008 as an assembly line worker at an auto manufacturing company. She has also reported part-time and short-term work. She has reported a high school education, with some college. 12/05/2013, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. At her Board hearing, she indicated that she began received disability benefits from the Social Security Administration (SSA) in 2009. Her attorney explained that the Veteran’s SSA benefits were based on her multiple sclerosis (MS) and hypertension. In a December 2013, the Veteran attributed her unemployability to her depression and hypertension. Id. The Veteran is not currently service-connected for MS. As such, any functional impact caused by this disability may not be considered. 38 C.F.R. § 4.16. (The Board, however, notes that the Veteran has a current pending appeal for several issues, to include the issue of service connection for MS. 09/24/2019, VA Form 10182 Notice of Disagreement. This issue is not currently for consideration in this decision and it will be addressed in a separate Board decision.) A July 2010 VA examination for hypertension reflects that the Veteran described her blood pressure as not well controlled and reported occasional syncope episodes, although not as often as when she was working (1996-2008). Functional impact was described as decreased concentration, lack of stamina, and weakness or fatigue, resulting in increased tardiness and increased absenteeism. A May 2013 VA mental health examination shows a diagnosis of major depressive disorder. Regarding current symptoms, the examiner endorsed depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Regarding occupational and social impairment, the examiner described it as total. In contrast, a September 2014 VA mental health examination described the Veteran occupational and social impairment as reduced reliability and productivity. Current symptoms consisted of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motion and mood. A September 2014 VA examination for hypertension is negative for functional impact. In a January 2017 Board hearing, the Veteran testified that she took multiple medications for, and constantly monitored, her blood pressure. In December 2017, the Veteran underwent a VA examination for her hypertension. The 2017 examiner described the Veteran’s functional limitations related to employment as being able to “manage most regular office type[s] of job activities and she is able to follow low to modestly complex instructions, provided that she would be given intermittent periods of rest, like for 10 minutes every hour.” This description establishes that the Veteran would need approximately 70 minutes of additional rest per day excluding an hour or half hour lunch break while working. Moreover, the examiner noted that the Veteran would also need “provisions to be excused from her tasks in those circumstances in which her blood pressure becomes symptomatically uncontrolled.” In September 2019, the Veteran underwent a VA examination for her sleep apnea. The examiner indicated that the Veteran’s sleep apnea manifested as daytime hypersomnolence, which would impact daytime performance on any type of job. In March 2020, the Veteran underwent a VA examination for her mental health disability. The examination report reflects the Veteran’s symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of sleep and mood. The examiner concluded that the Veteran’s mental health disability resulted in occupational and social impairment with reduced reliability and productivity. More specifically, the examiner indicated that the Veteran’s mental health symptoms may affect her ability to concentrate and complete tasks at work. In May 2020, the Veteran submitted a psychosocial assessment and employability evaluation from a private psychologist. The author explained that the Veteran had been unemployable since 2008, when she was taken off her job at the auto manufacturing company, due to the mental and physical problems that she was experiencing at the time. Regarding her mental health symptoms, the author stated that these remained active and fluid, despite medications. The author opined that the Veteran is not viable rehabilitation candidate, nor is she capable of sustaining substantial, gainful work activity. The author stated that her opinion was based on the Veteran’s education, training, past work experience, and current level of symptoms. The author further indicated that, due to the Veteran’s difficulty with concentration, difficulty getting along with others, and irritability, she would not be able to perform substantial, gainful work activity in a competitive job. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that, for the period since October 4, 2011, the Veteran’s service-connected disabilities (depression, hypertension, and sleep apnea) combined to render her unemployable. The Veteran’s work experience consists of work that is physically demanding or requires concentration. 12/05/2013, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Board finds that work of such nature is incompatible with the functional impact of the Veteran’s service-connected disabilities. As described above, her disabilities manifest as fatigue, daytime somnolence, concentration issues, and difficulty establishing and maintaining effective work and social relationships, among other symptoms. Insofar as there is some indication that the Veteran could do work of a less physical nature, the Board finds that such option is not consistent with her education and work experience. As mentioned, the Veteran has been out of the work force since 2008 and has a high school education. More importantly, her service-connected disabilities limit her reliability and productivity, significantly reducing her job prospects. As mentioned, she has concentration and irritability issues due to her depression and sleep apnea, and her hypertension symptoms require her to take intermittent periods of rest (approximately 70 minutes of additional rest per day) during work. Under these circumstances, it is unlikely that the Veteran would be able to secure and maintain substantially gainful employment. Therefore, entitlement ot a TDIU is warranted on an extraschedular basis for the period since October 4, 2011, but no earlier. Prior to October 4, 2011, service connection is in effect only for hypertension, rated as 10 percent disabling. Based on the evidence summarized above, the Board finds that the functional impact caused by the Veteran’s hypertension did not rise to the level of severity contemplated for a TDIU. As mentioned, the evidence establishes that the Veteran required constant medication for control of her hypertension, which in turn required her to take intermittent periods of rest (approximately 70 minutes of additional rest per day) during work. The Board acknowledges the functional impact caused by the Veteran’s hypertension but concluded that such occupational impairment, by itself, was not at least as likely as not to prevent the Veteran from securing and maintaining gainful employment. This is consistent with the rating assigned for the Veteran’s hypertension, which is 10 percent. 38 C.F.R. § 4.1 (2020). Indeed, this evaluation compensated the Veteran for impacts of here hypertension, to include increased tardiness and increased absenteeism. In looking at the overall disability picture, to include the impairment from her service-connected hypertension, tends to show a level of impairment that is below the evidentiary threshold for an award of TDIU. As such, a TDIU is denied for the period prior to October 4, 2011. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.