Citation Nr: 21015725 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-13 370 DATE: March 18, 2021 ORDER As of February 10, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of February 10, 2011. CONCLUSION OF LAW As of February 10, 2011, the criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 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 1971 to April 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2012 by a Department of Veterans Affairs (VA) Regional Office. In May 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2018, the Board remanded the issue of entitlement to a TDIU for additional development. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted a TDIU, effective July 12, 2012. However, as the Veteran’s claim for a TDIU was raised as part and parcel of his claim for a higher initial rating for his diabetes mellitus, type II, the appeal period begins on February 10, 2011, the date service connection was established for such disability. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). Consequently, in October 2020, the Board again remanded the claim for a TDIU and it now returns to the Board for further appellate review. The Board observes that the Veteran has also perfected an appeal as to the issues of entitlement to an effective date prior to February 10, 2011, for the award of service connection for adjustment disorder with anxiety and entitlement to a higher initial rating for such disability; however, as he has requested a Board hearing before a Veterans Law Judge in connection with such appeal, the matter will be the subject of a separate Board decision issued at a later date, if otherwise in order. Entitlement to a TDIU on an extra-schedular basis prior to July 12, 2012. As noted in the Introduction, the Veteran has been awarded a TDIU as of July 12, 2012; however, the appeal period extends from February 10, 2011, the date service connection for diabetes mellitus, type II, has been established. Consequently, the issue before the Board is entitlement to a TDIU for the period from February 10, 2011, to July 12, 2012. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Thus, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The Court also defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In the instant case, as of February 10, 2011, the Veteran is service-connected for diabetes mellitus, evaluated as 20 percent disabling, and adjustment disorder with anxiety, evaluated as 30 percent disabling, with an overall combined rating of 40 percent. Thus, he does not meet the schedular threshold for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(b). Nonetheless, in the October 2020 remand, the Board found that there was sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities for the appeal period prior to July 12, 2012. Thus, the case was remanded in order to refer it to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). While the Director found that a TDIU on an extra-schedular basis was not warranted in a December 2020 opinion, the Board nevertheless resolves all doubt in favor of the Veteran and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the appeal period prior to July 12, 2012. In this regard, in his September 2018 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he became too disabled to work as of February 10, 2010, the date he last worked full-time. In regard to his education, he indicated that he began nursing school in 1974, but did not complete the program and had no other type of education or training past such limited time in college. As pertinent to his work history, the Veteran reported self-employment as a contractor from 1994 until 2009. He described unsuccessfully securing and maintaining employment as a general contractor in October 2011, which resulted in three weeks of work, and in July 2015, which resulted in 2 days of work. VA treatment records from this period likewise document unsuccessful attempts at finding and maintaining employment as a concrete contractor. In regard to the functional impairment associated with his service-connected disabilities, a May 2011 VA diabetes mellitus examination reflects that the Veteran had to self-monitor for symptoms of hypoglycemia when working, had to use appropriate snacks to avoid hypoglycemia, and experienced a lack of stamina with respect to occupational activities. Additionally, when evaluating the Veteran’s psychiatric disability in June 2011, a VA examiner found his medical issues “may well have some bearing on his ability to manage his job duties on an enduring basis.” In this respect, he noted a portion of the Veteran’s medical concerns were related to his problems with diabetes and the effect such had on his ability to function in his work setting. Additionally, an October 2011 VA treatment record indicates the Veteran had been unable to secure work in concrete laying for a while due to his diabetes mellitus, and a February 2012 VA treatment record shows physicians advised the Veteran not to indulge in strenuous physical activity due to unexplained symptoms. Another record from February 2011 highlights the Veteran’s reported frustration with an inability to work as he had in the past, due to what he described as “debilitating” symptoms of diabetes. Further, VA treatment records dated in June 2012 reflect the Veteran’s reported that he was unable to do his usual outdoor work as a mason and brick layer due to poor health and uncontrolled diabetes mellitus. The attending physician noted the Veteran was regularly followed in the VA diabetic clinic and his blood glucose remained uncontrolled. In the May 2014 Board hearing, the Veteran described his struggle trying to work prior to, and after, the date he stopped working full-time in 2010. Specifically, he again expressed frustration with trying to regulate his uncontrolled blood sugar while also completing physical work as a contractor. He recalled trying to manage his diabetes while working outdoors in the heat, which he said at times resulted in heat stroke and heat exhaustion. Regarding other types of the employment, the Veteran stated that symptoms of his anxiety disorder limited his ability to engage with people, which he found was often required in sedentary types of employment. The Board acknowledges the evidence unfavorable to the Veteran’s claim as it was described in the December 2020 advisory opinion, to include the fact that the Veteran was receiving instructions on how to manage his diabetes and hypoglycemia through nutrition and medications, and the symptoms associated with his adjustment disorder were reported to be mild in severity. However, in light of the evidence described herein, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history for the appeal period prior to July 12, 2012. Specifically, the Board finds probative that the Veteran’s education level, training, and experience only prepared him for physically demanding contracting work, often outside in extreme temperatures, which was made difficult, if not impossible at times, by his well-documented symptoms of diabetes. Therefore, resolving all doubt in the Veteran’s favor, a TDIU on an extra-schedular basis is warranted as of February 10, 2011. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.