Citation Nr: 21022577 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-41 959 DATE: April 16, 2021 ORDER Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) for period from July 20, 2012 to October 19, 2012 is granted. FINDING OF FACT For the period from July 20, 2012 to October 19, 2012, the Veteran’s service-connected disabilities do not meet the schedular criteria for consideration for TDIU. However, the evidence does suggest that his service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) for period from July 20, 2012 to October 19, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1983 to September 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2021 rating decision of a VA Regional Office (RO). In November 2020, the Board remanded the claim for an earlier effective date for TDIU for additional development. The Board finds that the RO substantially complied with the Board’s remand directives, and the Board may now proceed with adjudication. 1. Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) for period from July 20, 2012 to October 19, 2012 The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation from July 2012 to October 2012. The Veteran is already in receipt of individual unemployability from October 19, 2012 onward. The Board notes that while the Veteran first submitted an application for TDIU in October 2013, his claim for TDIU stems from his claim for service connection for multiple disabilities, which was received on July 20, 2012. Accordingly, the period on appeal is from July 20, 2012 to October 19, 2012. During this period, the Veteran was in receipt of a combined evaluation of 40 percent for two service-connected disabilities. His depressive disorder was rated as 30 percent disabling during this period. His left shoulder arthritis and impingement syndrome (major) was rated as 20 percent disabling. TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In determining whether TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the entire period on appeal, the Veteran does not meet the criteria for schedular consideration for TDIU. In November 2020, the Board remanded the claim for TDIU for extraschedular referral to the Director of Compensation services. In a February 2021 VA memorandum, the Director denied the claim for an extraschedular TDIU for the period on appeal. The Board is not bound by this determination and will reconsider the issue based on the evidence of record. In September 2012, VA treatment records reflect a negative screening for depression. The Veteran stated that he had no days in which he had little interest or pleasure in doing things. He did have several days where he felt down, depressed, or hopeless. The Board notes that in a February 2013 decision, the Social Security Administration (SSA) found that the Veteran had been disabled since May 31, 2010 and granted his claim for disability. In an October 2013 application for TDIU, the Veteran stated that he had last worked fulltime in May 2010, when he worked approximately 60 hours a week performing hard labor. He had previously worked as a chemical operator, but he became too disabled to work May 31, 2010. In an October 2013 statement in support of his claim, the Veteran stated that his depression and pain in his joints caused inability to work and provide for his family. He stated that there were days when his shoulder disability prevented him from lifting or holding anything, and he had been forced out of work due to two surgeries. During the Veteran’s November 2013 VA examination for shoulder conditions, the Veteran reported being unable to lift anything during flare-ups. However, the VA examiner found that the shoulder condition had no impact on his ability work, as the condition was typically less severe, including at the time of the examination. In October 2015, the Veteran submitted a Disability Benefits Questionnaire (DBQ) for mental disorders that had been completed by a private psychiatrist. The psychiatrist found that the Veteran’s depressive disorder resulted in occupational and social impairment with deficiencies in most areas. He was positive for depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of mood and motivations, and persistent delusions and hallucinations. In an accompanying statement on the Veteran’s employability, the psychiatrist found that the Veteran could not sustain the stress of a competitive work environment. His left shoulder also made physical labor impractical. In April 2019, the Veteran submitted buddy lay statements from his wife and two daughters. They described the Veteran as experiencing severe mood problems, sleep impairments, suspiciousness, and an inability to handle stressful situations. In an April 2020 VA retrospective medical opinion on the Veteran’s employability from July 2012 to October 2015, the VA examiner noted that the Veteran was a high school graduate with one year of college. The Veteran had been unemployed and on SSA disability since 2010. The examiner found that his depression and anxiety did not impair his ability to perform activities of daily living (ADL), but they would affect his memory, concentration, and interpersonal relationships. He could perform work occupationally at his own pace in an environment that allowed him to work independently. The Veteran’s shoulder disability would allow him to perform physical labor that did not involve pushing or pulling, reaching, heavy lifting, or operation of heavy manual labor equipment. In an August 2020 employability assessment by a vocational consultant, the consultant provided a detailed review of the Veteran’s relevant treatment history, examination reports, and employability assessments. Based on their review of the claims file, the consultant concluded that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation since at least July 20, 2012. The consultant stated that while there were medical opinions indicating that the Veteran could technically perform some physical and solitary labor, the practical reality of his conditions was better addressed by a vocational expert rather than a medical expert. In the consultant’s opinion, the combination of the Veteran’s obstructive sleep apnea, depressive disorder, and left shoulder disability rendered him unable to maintain employment in a competitive work environment. In a February 2021 VA memorandum, VA recommended granting the claim for extraschedular TDIU effective July 20, 2012, the date of the Veteran’s claim. In a February 2021 administrative decision, the Director of Compensation Services denied the claim. They noted that while the author of the August 2020 employability assessment found the Veteran unemployable since July 2012, there rationale was due in large part to the sleep impairment resulting from his sleep apnea. This condition was not service connected during the period on appeal. The Board has carefully considered the Veteran’s statements regarding the effects of his disability on his employability. Some of this was due to obstructive sleep apnea, which was not service connected until October 19, 2012. However, the Board does not find that the evidence clearly reflects that this disability was the critical factor leading to an inability to secure or follow a substantially gainful occupation. Accordingly, the Board will resolve all doubt in favor of the Veteran, and an effective date of July 20, 2012 for TDIU is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.