Citation Nr: 21015509 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-09 460 DATE: March 17, 2021 ORDER A total disability rating due to individual unemployability is granted for the period from April 21, 2009, until October 18, 2013. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, the evidence is sufficient to establish that the Veteran’s combined service-connected disabilities rendered him unable to secure and maintain substantially gainful employment for the period from April 21, 2009, until October 18, 2013. CONCLUSION OF LAW The criteria for a total disability rating due to individual unemployability from April 21, 2009, until October 18, 2013, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1997 to September 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board granted a total disability rating due to individual unemployability (TDIU) from October 18, 2013, and remanded for consideration by the Director, Compensation Service entitlement to a TDIU under 38 C.F.R. § 4.16(b) before that time. As that directive has been complied with, the Board will now adjudicate entitlement to an extraschedular TDIU for the period from May 21, 2009, to October 18, 2013. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a Veteran’s schedular rating is less than total, a TDIU may be awarded where a Veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16. For purposes of a TDIU, unemployability means inability to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a Veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16. The Veteran’s service-connected disabilities in the period from May 21, 2009, to October 18, 2013, include bronchitis, rated 30 percent from September 27, 2006; chronic headaches, rated 10 percent from September 27, 2006, and 30 percent from May 1, 2013; cervical spine strain, rated 10 percent from September 27, 2006; thoracolumbar spine strain, rated 10 percent from September 27, 2006; left shoulder AC joint separation with arthritis, rated 10 percent from September 27, 2006; right knee retropatellar pain syndrome, rated 10 percent from September 27, 2006; tinnitus, rated 10 percent from September 27, 2006; deviated septum, noncompensable from September 27, 2006; and, right leg atopic dermatitis, noncompensable from September 27, 2006. Turning to the evidence, during service the Veteran was trained as an electrician. After service, he worked as an apartment maintenance supervisor for two years. From October 2008 to September 2009 the Veteran worked as a communications technician for Comcast. He voluntarily left the job due to moving. Over the course of the job, he was absent 32 days. At a September 2017 Board hearing, the Veteran testified that he used every hour of sick leave and vacation for his migraines, back, shoulder, and knee disabilities, and additionally had to take leave without pay 10 to 12 times that year. From July 2011 to November 2011 the Veteran worked at a car dealership. At a September 2012 vocational evaluation, he related that he left that job due to “poor business.” At the September 2017 Board hearing, he stated he was let go from the job because he was not able to perform the tasks asked of him, including standing for long periods, walking around the lot and up and down hills. On a July 2018 VA Form 21-8940 he estimated that he had lost a total of 35 days due to illness at this job. In December 2011, the Veteran worked for two months at a call center before ultimately leaving for personal reasons. He went through training and took calls for about a month, but he was “in and out sick” due to migraines and back issues from sitting and staring at a computer screen for 12-hour shifts. Around April or May 2012, he enrolled in an apprenticeship program. For the first 12 weeks, classes were one day per week. After classes finished in December 2012, he was assigned to a job with duties including carrying 60-pound bundles of electrical conduits into five-foot ditches. He worked one full day for eight hours, after which he developed a migraine. The next morning, he was in so much pain that he needed help getting out of bed, and he called work to say he would no longer be able to perform that job, thus withdrawing from the apprenticeship program. From September 2012 to November 2012 the Veteran worked as a food delivery driver. No reason was provided for termination. The Veteran related that he had lost 7 days at that job due to health. From March 2013 until October 2013, the Veteran worked in automotive sales. The employer indicated that the Veteran voluntarily left due to “family reasons.” In an April 2016 vocational evaluation, the Veteran related he left “because he did not like selling automobiles.” At the Board hearing, the Veteran stated he was not provided any sick leave or vacation time, so he always had to take work off whenever his disabilities affected him. In the July 2018 VA Form 21-8940 he estimated that he had lost a total of 28 days at this job. At an August 2010 examination, the Veteran’s spine disabilities were noted to cause spontaneous pain, worsened by physical activity, and to impair standing and walking; one quarter-mile would take him an hour. The Veteran’s ability to turn move his neck was also impaired. Overall, his disabilities were opined to limit all activities “severely.” Regarding his knee disability, it was found to flare up spontaneously three times a week, lasting one day, with pain and inability to do any physical activity. Of record is a September 2012 vocational evaluation. It was opined that the Veteran could no longer perform the physical duties required of a job such as apartment maintenance due to his service-connected shoulder and knee conditions. It was also opined that he could not continue to work as an electrician or cable installer due to numbness in his hands related to an undiagnosed condition. In general, his headaches would be aggravated in any setting with loud, repetitive noises, or poor lighting. Due to his chronic bronchitis, he needed to avoid areas with fumes, odors, dust, and pollutants. Physically, he was limited in lifting over 10 pounds, pushing and pulling, climbing, kneeling, crouching, and crawling due to his spine disabilities; limited in standing, bending, twisting, or walking more than 15 minutes due to his back and knee disabilities; and limited in reaching due to his shoulder disability. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence is sufficient to support that the Veteran was unemployable due to his service-connected disabilities for the period from May 21, 2009, until October 18, 2013. The evidence reflects that the Veteran’s work history and training is in jobs requiring physical activity including standing and walking (automotive sales), or more demanding physical labor (electrician apprenticeship, communications technician). When the Veteran attempted a more sedentary job (call center), the extensive sitting and working at a computer aggravated his spine disabilities and migraine headaches. The Veteran submitted his extensive job history during this time period, and while the evidence does not show that he left every single job out of an inability to work it, the evidence does show that at most of the jobs the Veteran lost a significant number of days at work due to health reasons. The Board acknowledges the evidence showing the Veteran completed an associate degree in arts in 2008 to 2011 and attend apprenticeship classes in 2012. The ability to succeed in an educational setting is not, however, a de facto proxy for ability to maintain substantially gainful employment, but is instead a fact to be considered on a case-by-case basis. See Washington v. Derwinski, 1 Vet. App. 459 (1991). Here, the evidence shows that the Veteran experienced significant impairment when attempting work at a sedentary job, and the apprenticeship program was geared towards an ultimate physical job that he was unable to maintain due to his service-connected disabilities. The Board notes the November 2020 opinion from the Director, Compensation Service finding the preponderance of the evidence against the Veteran being unemployable due to his service-connected conditions. The opinion, however, failed to consider and discuss the Veteran’s complete work history and all functional impacts of his service-connected disabilities during the appeal period, and therefore the Board does not find the opinion persuasive. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that the probative value of an opinion depends on whether it considers all of the relevant facts). Accordingly, resolving any reasonable doubt in the Veteran’s favor, an extraschedular TDIU is granted from May 21, 2009, until October 18, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16(b). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Associate 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.