Citation Nr: 21015974 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-06 719 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from January 31, 2014, to January 22, 2018, is granted. Entitlement to a TDIU rating prior to January 31, 2014, is denied. FINDINGS OF FACT 1. From January 31, 2014, to January 22, 2018, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. 2. The Veteran maintained substantially gainful employment prior to January 31, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU rating on an extraschedular basis from January 31, 2014, to January 22, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to TDIU have not been met prior to January 31, 2014. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Relevantly, an October 2020 Board decision granted a schedular TDIU rating from January 23, 2018, and remanded entitlement to a TDIU rating on an extraschedular basis prior to January 23, 2018, to the Agency of Original Jurisdiction (AOJ). Specifically, the Board referred the Veteran’s claim to the Director of the Compensation Service (Director) 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, and the claim is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a TDIU rating on an extraschedular basis from January 31, 2014, to January 22, 2018, is granted. 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). All service-connected disabilities stemming from a common etiology or a single accident are considered one disability for rating purposes. See 38 C.F.R. § 4.16(a)(2). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled 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 of Appeals for Veterans Claims (Court) 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to January 23, 2018, 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 October 2020. See 38 C.F.R. § 4.16(b). The Director denied entitlement to extraschedular TDIU prior to January 23, 2018. See January 2021 Administrative Decision. As of January 31, 2014, the Veteran was service connected for the following disabilities: degenerative arthritis of the spine, left lower extremity radiculopathy, and erectile dysfunction. The Veteran contends that he was forced to retire on January 31, 2014, due to his back pain. See May 2014 correspondence. He explained that sitting was unbearable because of the pain. Id. The Veteran took employment as a bank teller, an accounting clerk, an aircraft mechanic, quality control manager for an aviation repair company, and a tax law specialist for the IRS before his retirement. See December 2019 correspondence. He took an early retirement from his tax law specialist position due to his chronic pain caused by his service-connected degenerative arthritis of the spine. Id. As for his education, the Veteran earned an associate degree from the Academy of Aeronautics, an FAA Airframe and Powerplant mechanic license, and related certificates. Id. He was trained as a tax law specialist when he started with the IRS. Id. The Board notes that the Veteran was afforded a VA examination in May 2014 for his degenerative arthritis of the spine, but the examiner did not adequately describe the Veteran’s impairment during flare-ups. As discussed in the October 2020 decision, the impairment caused by his degenerative arthritis of the spine remained at the same level throughout the appellate period. When accounting for functional impairment caused by flare-ups, a VA clinician opined that the Veteran’s service-connected degenerative arthritis of the spine limited: running, walking, and standing for long periods of time; climbing ladders and stairs; and bending, lifting, carrying, sleeping, and sitting for long periods of time. See March 2020 VA examination report. Indeed, the Veteran’s private physician noted that the Veteran’s pain significantly affects his ability to perform activities of daily living. See January 2017 private medical records. Moreover, the Veteran states that he struggled to sit or walk for more than a few minutes. Id.; see also May 2014 private medical records, December 2019 Veteran’s statement. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician'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. Thus, the Board finds that the Veteran's physical symptoms, to include pain and limited range of motion, hindered his ability to perform any physical activity, to include sedentary employment, for prolonged periods of time. His physical symptoms make it difficult to sit for more than a few minutes and sleep. The Board notes that the impairment to his ability to sleep would likely make it difficult for him to concentrate and perform any task conducive to his education and experience as an aircraft mechanic or tax law specialist, even at a management level. Therefore, the Veteran's service-connected disabilities prevented him from obtaining and maintaining gainful employment from January 31, 2014, to January 22, 2018. Accordingly, the criteria for a TDIU rating on an extraschedular basis from January 31, 2014, to January 22, 2018, have been met. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 2. Entitlement to a TDIU rating prior to January 31, 2014, is denied. The Veteran stated that his last day employed with the IRS was on January 30, 2014, wherein he worked 40 hours per week. See May 2014 correspondence. The Veteran has not alleged, and the record does not show, that his employment was less than substantially gainful, required reasonable accomodation, or that the Veteran was otherwise unable to obtain or retain substantially gainful employment prior to January 31, 2014. (Continued on the next page)   Thus, the Veteran retained full-time employment status until his retirement on January 30, 2014. Further, the evidence does not show that the Veteran’s service-connected disabilities have resulted in an inability to secure and follow a substantially gainful occupation prior to January 31, 2014. Thus, the Veteran is not entitled to a TDIU rating prior to January 31, 2014. 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.