Citation Nr: 21020710 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-41 153A DATE: April 8, 2021 ORDER A total disability rating based upon individual unemployability (TDIU), on an extraschedular basis, is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met following the last day of his substantially gainful occupation. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(b), 4.18, 4.19, 4.25.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to March 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and February 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in October 2020, at which time it was remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The Director provided such a decision in February 2021. As such, the requested directives have been substantially complied with and the matter has been properly returned to the Board for appellate consideration. Entitlement to TDIU on an extraschedular basis. The issue before the Board is whether TDIU was reasonably raised by the record and whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. VA guidance has defined a substantially gainful occupation as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” It also has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342, 355-356 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such 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). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, if applicable, disabilities resulting from a common etiology or a single accident, or disabilities affecting a single body system will be considered as one disability. Id. Here, effective March 14, 1973, the Veteran’s service-connected disabilities included: degenerative disc disease with spina bifida occulta, evaluated at 20 percent disabling. The rating was decreased to 10 percent disabling, effective December 10, 2013, and increased to 40 percent disabling, effective April 19, 2019. The combined evaluation was no greater than 40 percent disabling. 38 C.F.R. § 4.25. The Veteran did not have a combined rating of at least 70 percent, and the Veteran does not have multiple service-connected disabilities resulting from a common etiology or a single accident, nor affecting a single body system. Therefore, the schedular requirements for TDIU per 38 C.F.R. § 4.16(a) have not been met. In October 2020, the Board granted entitlement to a staged initial rating of 20 percent for the Veteran’s service-connected degenerative disc disease, effective March 14, 1973. 10/19/2020, BVA Decision. In the same decision, the Board found that it has jurisdiction to consider the Veteran’s entitlement to TDIU, pursuant to Rice v. Shinseki, based on the record and the severity of the Veteran’s service-connected disabilities. 22 Vet. App. 447, 453-54 (2009) (holding that a claim for TDIU may be part and parcel of a veteran’s claim for an increased rating of a service-connected disability). And, during a February 2018 Board hearing, the Veteran testified that he had to retire earlier than anticipated due to his service-connected disability. 02/23/2018, Hearing Transcript. Accordingly, the Board finds that TDIU was reasonably raised by the record. The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Accordingly, in October 2020, the Board remanded the claim for initial extraschedular consideration. In February 2021, the Director of Compensation Service determined that a TDIU on an extraschedular basis was not warranted. In Wages v. Shinseki, the United States Court of Appeals for Veteran’s Claims (the “Court”) held that a decision from the Director of Compensation Service “is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence . . . It is simply a decision that is adopted by the [agency of original jurisdiction] and reviewed de novo by the Board.” 27 Vet. App. 233, 239 (2015). The Court concluded that the Board erred when it relied on the Director’s decision as evidence to deny an extraschedular total disability rating based on individual unemployability. Id. The Court added that the VA Compensation Service Director’s initial determination as to an extraschedular evaluation is not evidence. Id. After affording him the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disability prevents him from securing or following gainful employment. In determining whether the Veteran is capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. See Rice v. Shinseki, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual’s particular circumstances). The Veteran contends that his degenerative disc disease with spina bifida occulta prevents him from securing or following a substantial gainful employment. 09/10/2020, Appellate Brief. The Veteran last worked as a truck driver. 02/23/2018, Hearing Transcript. A December 2013 VA examiner remarked that the Veteran’s back disability impairs his ability to perform work-related duties such as, but not limited to, lifting or bending. 12/12/2013, C&P Exam. An April 2019 VA examiner noted that the Veteran’s back disability impacted his ability to work. The Veteran is impaired in prolonged sitting, standing, walking, repetitive bending, and heavy lifting. 03/20/2019, C&P Exam. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would renders it impossible for him to obtain or retain substantially gainful employment of some type based solely on his service-connected disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence demonstrates that the Veteran’s service-connected degenerative disc disease renders him unable to work in physical labor, as the Veteran is unable to lift or bend. Additionally, the Veteran’s service-connected degenerative disc disease also renders him unable to work in sedentary work environments, as the Veteran is unable to sit or stand for prolonged periods of time. Based on the combined effects of the Veteran’s service-connected disabilities, as well as the Veteran’s work history and education level, entitlement to a TDIU is warranted. (Continued on the next page)   Given these reasons and after affording the Veteran the benefit of the doubt, TDIU on an extraschedular basis is warranted following the last day of his substantially gainful occupation as a truck driver. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). The Board notes that the Veteran has been requested to provide a VA 21-8940, to include in November 2020 and January 2021; however, one is not of record. A March 2018 VA treatment report reflects that the Veteran retired 19 year ago. See 02/25/2021 CAPRI, at 96. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.