Citation Nr: 21015844 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-32 223A DATE: March 18, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) prior to February 24, 2016, effective February 25, 2013, is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to maintain gainful employment effective February 25, 2013. CONCLUSION OF LAW The criteria for extraschedular TDIU prior to February 24, 2016, effective February 25, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from July 2004 to April 2005 and from July 2008 to June 2009. The Veteran testified at a hearing in May 2019. A transcript of the hearing is of record. This matter was previously before the Board in October 2019, at which time it was remanded for additional development. That development has been completed and the matter is again before the Board. This is the only issue on appeal. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). Provided a veteran does not meet these minimum percentage rating requirements of § 4.16 (a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16 (b) if it is established he is indeed unemployable on account of his service-connected disabilities. 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. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board upon receipt of that determination is not bound to accept it, and may resolve the question of extraschedular entitlement of its own accord. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the AOJ reviewed de novo by the Board). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is “[in] capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose, 4 Vet. App. at 363. Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. The Board notes that entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16 (b), and an extraschedular rating under 38 C.F.R. § 3.321 (b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16 (b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Prior to February 24, 2016, the Veteran’s total disability rating was 50 percent and therefore, the Veteran did not meet the criteria for a schedular TDIU. At that time, the Veteran was service connected for posttraumatic stress disorder (PTSD), migraine headaches, tinnitus, hypertension, spondylolisthesis and interverbal disc syndrome, and right lower extremity radiculopathy. The Veteran earned a GED in 1990 and received training in plumbing while in the military. See February 2018 Vocational Rehabilitation and Education. On his application for vocational rehabilitation, the Veteran reported his past employment as a utility worker and an iron worker. See June 2011 VA Form 28-1902w. The Veteran also reported working as an assistant powerhouse operator from February 2012 to February 2013, where he was terminated for missing three days of work due to depression. See May 2019 Hearing Transcript. With a past in construction, the Veteran reported that his back disability also prevents him from working. See id. Additionally, the Veteran has a history of suicidal ideation and has had significant hospitalizations for suicide attempts in 2010, 2013, and 2014. See November 2015 U.S. Army Physical Evaluation Board. The Veteran had a vocational assessment performed in February 2018. The examiner noted the Veteran’s low average range of intellectual abilities and that he would have to remediate all of his academic skills to be able to participate in a formalized retraining program. See February 2018 Vocational Rehabilitation and Education. Given the Veteran’s low average intelligence, it may be a difficult task for the Veteran to achieve, as the results of his depression were in the severe range. See id. Therefore, the examiner opined that the Veteran could perform the job of a gate guard. Id. In an October 2019 decision, the Board remanded this matter for referral to the Director of Compensation and Pension for an opinion as to whether an extraschedular TDIU is warranted. In an August 2020 opinion, the Director opined an extraschedular TDIU was not warranted. The Director reviewed the Veteran’s medical record and the Veteran’s statements regarding his ability to work. Based on the evidence, the Director concluded extraschedular entitlement to a TDIU was not shown due to the Veteran’s service-connected disabilities. The Director explained the evidence did not show that the Veteran’s service-connected disabilities rendered him unemployable. The Board has reviewed the evidence of record, including the Director’s opinion. The Board finds that when taken as a whole, the preponderance of the evidence showing the Veteran’s education level, his skill set, the vocational assessment, his frequent hospitalizations, and the Veteran’s testimony show he is unemployable. Therefore, the Board affords this evidence the most weight, outweighing the Director’s opinion that the Veteran remains employable. Based on the Veteran’s education and lack of experience, the Board finds that a job as a gate guard is not feasible for the Veteran to accomplish. Therefore, a TDIU on an extraschedular basis will be granted. The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), Dalton v. Nicholson, 21, Vet. App. 23, 32-34 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). However, if it is factually ascertainable that an increase in disability occurred within the one-year prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400 (o)(2). See also Hazan v. Gober, 10 Vet. App. 511, 519 (1992); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim”). (Continued on the next page)   Here, a TDIU claim was inferred by a decision review officer based off the record and the Veteran’s claim for an increased rating for his PTSD in April 2011. See September 2016 VA Form 21-6789. The Veteran was hospitalized briefly on February 25, 2013 with complaints of worsening PTSD and suicidal ideation with thoughts of suicide within the past month. See February 2013 SWS Psychosocial History and Assessment. The Veteran was also terminated from his employment in February 2013 for missing three days of work due to depression. See May 2019 Hearing Transcript. Based on the above, the Board notes that it is factually ascertainable that the Veteran was unemployable at the time the Veteran was admitted to the hospital on February 25,2013. Additionally, the Veteran stated that his disabilities affected full time employment in February 2013. See id. As such, the Board finds February 25, 2013, the date when the Veteran was admitted to the hospital, as the effective date for extraschedular TDIU. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.