Citation Nr: 21021176 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 12-27 300A DATE: April 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 10, 2014, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from January 10, 2014, to September 25, 2016, is granted. FINDINGS OF FACT 1. Prior to January 10, 2014, the Veteran worked full-time as a forklift operator and material handler. 2. From January 10, 2014, to September 25, 2016, the Veteran’s service-connected disabilities at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. Prior to January 10, 2014, the criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 2. From January 10, 2014 to September 25, 2016, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in June 2015, May 2017, November 2017, June 2019, and September 2020. The case has been returned to the Board at this time for further appellate review. TDIU 1. Entitlement to TDIU prior to January 10, 2014, is denied. 2. Entitlement to TDIU on an extraschedular basis from January 10, 2014, to September 25, 2016, is granted. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA’s regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, as above, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the Board determined that the Veteran first raised the issue of entitlement to TDIU as part of his appeal of an August 2010 rating decision regarding the initial rating assigned to his service-connected shoulder disabilities. The issue of entitlement to TDIU has remained on appeal since. In a November 2016 rating decision, entitlement to TDIU was granted effective September 26, 2016. Thus, the remaining issue is entitlement to TDIU prior to September 26, 2016. From March 26, 2010 to July 1, 2014, the Veteran’s combined evaluation was 40 percent. From July 2, 2014, to September 25, 2016, the Veteran’s combined evaluation was 50 percent. Because the Veteran does not meet the schedular requirements for TDIU at any point during the period on appeal, the Board submitted this matter to the Director for extraschedular consideration. In an advisory opinion issued in January 2021, the Director determined that entitlement to TDIU on an extraschedular basis was not warranted. The Director concluded that, although the Veteran’s service-connected disabilities resulted in some limitations, there is no evidence that they precluded the Veteran from obtaining and maintaining gainful employment. However, the Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to TDIU. The Court has determined that the Director’s decision is, in essence, a decision by the AOJ and is no different than an RO’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Further, the Board finds that the Director’s determination that TDIU on an extra-schedular basis is not warranted is not persuasive as the Director did not discuss the Veteran’s June 2014 Vocational Rehabilitation and Education (VR&E) application. The record reflects that the Veteran was employed full-time as a forklift operator and/or material handler beginning in 1999. In September 2020, the Board determined that the record establishes that the Veteran has not engaged in substantially gainful employment since January 2014. The Veteran’s June 2016 formal application for TDIU reflects that he worked full-time until January 10, 2014. Thus, the Board finds that the preponderance of the evidence establishes that the Veteran worked full-time until at least January 10, 2014. In addition, the Board finds that the evidence does not establish that the Veteran’s employment from 1999 to January 10, 2014, was marginal on either an income basis or facts-found basis. Thus, the Board finds that the Veteran’s full-time employment from 1999 to January 10, 2014, indicates the Veteran was not precluded from engaging in substantially gainful employment prior to January 10, 2014. It follows that entitlement to TDIU for this time period is not warranted. However, as previously stated, the Board determined in September 2020 that the record establishes that the Veteran has not engaged in substantially gainful employment since January 2014. Also as previously stated, the Veteran submitted a VR&E application in June 2014. A June 2014 VR&E counselor report reflects that the Veteran finished high school and some college. The report also reflects the counselor’s finding that the Veteran’s ability to prepare for, obtain, or retain employment is significantly impaired by his service connected conditions and, as his work history consists of physically demanding jobs, the limitations imposed by his service connected disabilities make it no longer suitable for him to work in career fields that he has always done. In other words, the VR&E counselor determined that the Veteran meets the criteria for a serious employment handicap due to the fact that his service connected disabilities contribute in substantial part to his vocational impairment, he has not overcome the effects of the impairment, and, therefore, the employment goal was not feasible for the Veteran. The Board recognizes January 2015 VA neck and ankle examinations noting that these service-connected disabilities did not impact the Veteran’s ability to work, as well as a December 2015 VA shoulders examination that reflects that the Veteran’s service-connected shoulder disabilities did not impact the Veteran’s ability to work. First, the Board notes that the December 2015 VA examination was previously determined to be inadequate. Second, the Board finds that the evidence is it at least in equipoise as to whether the Veteran’s service-connected disabilities prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him, from January 10, 2014, to September 25, 2016. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that he is entitled to TDIU on an extraschedular basis during from January 10, 2014, to September 25, 2016. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.