Citation Nr: 21022186 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-30 034 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his educational and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.10, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, with service on Active Duty for Training (ACDUTRA) from May 1980 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in October 2018 and is now back before the Board for adjudication. Entitlement to a TDIU is granted. VA will grant a TDIU when the evidence shows that a 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; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 regulations provide that if there is only one such disability, 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 of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Where the veteran fails to meet the applicable standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In that situation, the case may be referred to the Director of Compensation Services (Director) for consideration of the assignment of a TDIU rating. 38 C.F.R. § 4.16(b). In the October 2018 remand, the Board referred the claim to the Director for consideration. In February 2021, an opinion was obtained from the Director in accordance with 38 C.F.R. § 4.16(b). The Board may now review the issue de novo and award extraschedular TDIU if warranted. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non service-connected condition 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). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  The term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id.  Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. Regardless, the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114 (s)). For the purposes of 38 U.S.C. § 1114 (s), a combined 100 percent rating does not satisfy the requirement of “a service-connected disability rated as total,” whereas a 100 percent rating assigned pursuant to a TDIU would satisfy that requirement. Bradley, 22 Vet. App. at 290-93.   Here, the Veteran is service connected for a lumbar spine disability which is rated as 40 percent disabling and radiculopathy of the lower left extremity, which is rated at 30 percent disabling for a combined rating of 50 percent disabled. Regarding the economic component, the Veteran reported that he previously worked as a furniture mover at two furniture factories 40 hours per week from 1983 to 1989, that he has not worked since approximately 1989 or 1990 due to his back disability, and that his highest annual income was $20,000. Regarding the noneconomic component, the Veteran reported on his May 2016 TDIU application that he completed one year of high school. His previous employment was at a furniture factory as a furniture mover. The Veteran’s medical records contain several references to the effect of his back disability on his ability to work. A February 2015 VA examination indicates that the Veteran reported that he was unable to perform any weight bearing jobs or jobs that would require lifting, bending, or carrying, and that he has difficulty sitting in a chair comfortably due to his service-connected back disability and service-connected radiculopathy. He also reported being unable to do any shopping, laundry, or other household activities. A September 2016 VA examination also reports that the Veteran’s activities are limited because of his back pain with radiculopathy. He has difficulty sitting in a chair comfortably and is unable to do any lifting, bending, carrying, or weight-bearing activities, and during flare ups, the Veteran is unable to leave his apartment. The September 2016 VA examiner also reported that the Veteran was unable to seek or maintain employment due to his service-connected back and radiculopathy. In a May 2016 letter, Dr. D.M., a VA clinician who treated the Veteran, opined that the Veteran was “unemployable due to his significant low back pain.” Dr. D.M. also opined in an August 2017 letter that the Veteran was unemployable due to his “significant chronic low back pain.” As noted above, the claim was sent to the Director of Compensation Services for consideration of TDIU on an extraschedular basis. In February 2021, an opinion was obtained from the Director in accordance with 38 C.F.R. § 4.16(b). The Director noted the Veteran’s disabilities and the Veteran’s reported work history. She concluded, based on the evidence, that the Veteran’s service-connected disabilities did not preclude substantially gainful employment. (Continued on the next page)   The Board has considered the medical evidence of record. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. Id. Here, the Board is persuaded by the fact that most recent reported employment was that of a furniture mover, and that the Veteran’s treating physician as well as multiple VA examiners have opined that the Veteran is unable to lift, bend, carry, or otherwise perform weight bearing tasks. There is no probative lay or medical evidence of record indicating that the Veteran is currently is able to perform those activities. The Board further notes that the Veteran has one year of high school education and no formal higher education degree or additional training or certifications that could qualify him for a job that did not require the ability to lift, bend, carry, or otherwise perform weight bearing tasks. Based on the evidence of record, and resolving all reasonable doubt in his favor, the Board finds that the severity of the symptoms of the Veteran’s service-connected back disability and lower left extremity radiculopathy, combined with his educational and occupational experience, precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.