Citation Nr: 21022534 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 10-28 289 DATE: April 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis for the period prior to April 16, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to April 16, 2013, the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis for the period prior to April 16, 2013, have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1951 to April 1954. This matter has previously been before the Board in May 2013, May 2016, January 2020, and November 2020 and was remanded for additional development. In November 2020, the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to a TDIU on an extraschedular basis for further development. Specifically, the Board instructed the Regional Office (RO) to refer the Veteran’s claim for a TDIU to the Compensation Services Director. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). Entitlement to a TDIU on an extraschedular basis for the period prior to April 16, 2013, is granted. The Veteran contends that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran has been awarded a TDIU since April 16, 2013, when he met the schedular criteria for a TDIU. The Board notes that a claim for a TDIU is a form of increased rating claim, and as such, the rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413 (1999). The Veteran filed increased rating claims for his service connected back disability and bilateral radiculopathy that was received by VA on June 23, 2009 and raised issue of a TDIU in his Notice of Disagreement dated November 25, 2009. Therefore, the relevant temporal focus for this matter begins June 23, 2008, or one year prior to the date of receipt of the Veteran’s application for increased ratings for his back and bilateral radiculopathy conditions, and ends April 15, 2013. See 38 C.F.R. § 3.400. 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. The Board may assign total disability ratings for compensation where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a). 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). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the relevant appeal period, the evidence shows that the Veteran has been rated 40 percent for his back condition since November 6, 1989, and 10 percent each for his bilateral radiculopathy of lower extremities since November 30, 2005. The Veteran’s combined disability rating was 50 percent from November 30, 2005 to April 15, 2013. Accordingly, the Veteran does not meet the criteria for a schedular TDIU for the appeal period. While the Veteran does not meet the schedular criteria for a TDIU, it is the established policy of VA 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. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director, Compensation Service (Director), for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran’s service-connected conditions, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran’s claim was referred to the Director in November 2020. In a January 2021 advisory opinion, the Director found that the evidence of record does not support that the Veteran’s service-connected back and bilateral radiculopathy disabilities alone showed marked interference with employment or periods of frequent hospitalization due to a service-connected disabilities for the period prior to April 16, 2013. Thus, the Director found that an extraschedular TDIU award was not warranted. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Thus, the remaining question is whether the Veteran’s service-connected conditions precluded gainful employment for which his education and occupational experience would have otherwise qualified him. A November 1989 private opinion, provided by Dr. N.M.S., was associated with the Veteran’s claims file in November 2009. The Veteran reported that he had pain localized over the right lumbar area for 30 years and that he was forced to retire in 1986 due to the increased physical activities at work. While the Board has considered the November 1989 private opinion, it provides minimal probative value as evidence of the Veteran’s disability picture and level of impairment after the date of the opinion. However, it is objective medical evidence that corroborates the Veteran’s assertion that he stopped working in the 1980s. In July 2009, the Veteran underwent a VA examination for his back. The examiner noted that the Veteran did not experience any incapacitating episodes or flare-ups, though the Veteran had pain daily. The examiner further noted that there was no interference with employment, but the Veteran’s back condition interfered with daily activities such that he was limited to how long he could stand or how far he could walk. The Veteran appeared for a peripheral nerves VA examination in September 2009, in which the examiner noted that the Veteran had almost constant pain and that sitting for long periods of time aggravated the pain. He also noted that bending and stopping aggravated the pain, with the Veteran’s left leg gave out from time to time. The Veteran claims that he is unable to work, to include both sedentary and physical employment. See October 2017 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran’s past work history indicates he primarily worked in electrical maintenance before being unable to work. Additionally, the Veteran’s highest level of education completed was one year of college. The Board finds that the impact of the Veteran’s symptoms makes it essentially impossible for the Veteran to secure and maintain substantially gainful employment for the period starting June 23, 2009. As previously noted, the Veteran’s back and bilateral radiculopathy symptoms interfere with his ability to perform the work of his previous role and would likely interfere with his ability to perform work for which he may be qualified based on his education and work history. Moreover, the Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work. Many of the symptoms related to the Veteran’s service-connected conditions, including constant pain, as well as aggravation of pain from prolonged standing, sitting, and walking, would impact the Veteran’s ability to successfully perform work in most occupational settings. (Continued on the next page)   Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected conditions, and an award of extraschedular TDIU is warranted for the period for the period prior to April 15, 2013. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.