Citation Nr: 21022000 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 11-13 969 DATE: April 14, 2021 ORDER For the period prior to September 25, 2009, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT For the period prior to September 25, 2009, the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW For the period prior to September 25, 2009, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2009 rating decision. In August 2020, the Board granted a TDIU from the period since September 25, 2009 and remanded the issue of entitlement to a TDIU prior to that date. *** A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to September 25, 2009, service connection is in effect for laryngeal trauma with upper airway obstruction (30 percent), residuals of fracture of the thyroid cartilage with hoarseness and partial left vocal cord paralysis (30 percent), and residuals scars of left temporal and mandible regions (10 percent), for a combined rating of 60 percent. As such, during this period, the Veteran did not meet the criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Nevertheless, it is VA’s established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In August 2020, the Board remanded the issue of entitlement to a TDIU prior to September 25, 2009, for extraschedular consideration. In August 2020, the AOJ recommended that entitlement to an extraschedular TDIU be denied. 08/14/2020, VA Memo. In January 2021, the Director, Compensation Service, concurred with the AOJ’s recommendation to deny TDIU benefits. 01/14/2021, VA Memo. This case has now been returned to the Board for further review. In this regard, although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director’s decision is in essence a decision by the AOJ and is no different than a 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). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. *** The Veteran has stated that his last full-time employment was as a fireman in 1994. There is no indication that the Veteran has worked since then. In fact, VA examinations suggest that he retired in 1994 due to medical reasons. In his 2008 TDIU claim form, the Veteran reported two years of college, with additional training as a mechanic. Regarding his ability to work, he asserted that he is unable to pursue a job due to his voice disability. The Veteran is service-connected for residuals of thyroid cartilage fracture with hoarseness and partial left vocal cord paralysis. This disability, which manifests as hoarseness, has been rated as 30 percent disabling since October 2003. Additionally, his service-connected larynx (respiratory) disability (rated as 30 percent disabling since February 2008) has been found to limit his ability to do physical work. After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the service-connected disabilities at issue precluded him from obtaining and retaining substantially gainful employment during the period prior to September 25, 2009. As mentioned, the Veteran’s respiratory disability limits his ability to do physical work. Additionally, he has a vocal cord disability that limits his ability to use his voice. The Board finds that these disabilities combine to render the Veteran unemployable. Insofar as the evidence suggests that the Veteran could do some types of non-physical work, the Board finds that this option is unrealistic when looking at the overall disability picture, as there is no indication that the Veteran has the experience, education or training to secure substantially gainful employment. As mentioned, he last worked as a fireman in 1994 and has been out of the workforce ever since. His education consists of two years of college and training as a mechanic. Furthermore, his service-connected voice disability limits his ability to communicate verbally. This impairment significantly limits the Veteran’s ability to secure and maintain substantial employment.   Resolving doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A TDIU is granted for the period prior to September 25, 2009. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.