Citation Nr: 21022624 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 13-34 563 DATE: April 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from January 1, 2010, is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran has reported consistently that he was self-employed as a builder and contractor between 1999 and 2009 when he became too disabled to work as a result of his service-connected disabilities. 2. The record evidence shows that, from January 1, 2010, service connection is in effect for a left hip disability, evaluated as 30 percent disabling effective July 20, 2011, coronary artery disease, evaluated as 30 percent disabling effective August 31, 2010, a right knee disability, evaluated as 10 percent disabling effective January 1, 1970, a left knee disability, evaluated as 10 percent disabling effective January 1, 1970, a left hip scar, evaluated as zero percent disabling (non-compensable) effective July 20, 2011, and for bilateral sensorineural hearing loss, evaluated as zero percent disabling (non-compensable) effective July 20, 2011; the combined disability rating for compensation is 50 percent effective August 31, 2010, and 60 percent effective July 20, 2011. 3. Resolving any reasonable doubt in the Veteran’s favor, the record evidence shows that his service-connected disabilities, alone or in combination, prevented him from securing or maintaining a substantially gainful occupation from January 1, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from January 1, 2010 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(b) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1965 to December 1969 in the U.S. Army, including in combat in the Republic of Vietnam. A Central Office Board hearing was held in November 2014 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. In December 2020, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ submit the Veteran’s claim of entitlement to a TDIU on an extraschedular basis prior to July 26, 2014, to the Director, Compensation Service (“Director”), for a decision. A copy of the Director’s decision has been associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to a TDIU on an extraschedular basis prior to July 26, 2014 The Board finds that the evidence supports granting the Veteran’s claim of entitlement to a TDIU on an extraschedular basis prior to July 26, 2014. The Veteran essentially contends that his service-connected disabilities, alone or in combination, precluded his employability in approximately 2010 when he stopped working as a self-employed builder and contractor. The Board agrees. The record evidence shows that, prior to July 26, 2014, service connection is in effect for a left hip disability, evaluated as 30 percent disabling effective July 20, 2011, coronary artery disease, evaluated as 30 percent disabling effective August 31, 2010, a right knee disability, evaluated as 10 percent disabling effective January 1, 1970, a left knee disability, evaluated as 10 percent disabling effective January 1, 1970, a left hip scar, evaluated as zero percent disabling (non-compensable) effective July 20, 2011, and for bilateral sensorineural hearing loss, evaluated as zero percent disabling (non-compensable) effective July 20, 2011; the combined disability rating for compensation is 50 percent effective August 31, 2010, and 60 percent effective July 20, 2011. Thus, the Veteran does not meet the schedular criteria for a TDIU prior to July 26, 2014. See 38 C.F.R. § 4.16(a) (2019). The record evidence also shows that the Veteran has reported consistently that he was self-employed as a builder and contractor between 1999 and 2009 when he became too disabled to work as a result of his service-connected disabilities. For example, he reported on a January 2017 VA Form 21-8940 (formal TDIU claim) that his service-connected ischemic heart disease (or coronary artery disease), bilateral knee disabilities, and left hip disability prevented him from securing or following any substantially gainful occupation. These disabilities had affected his full-time employment in January 2010 when he last had worked full-time and became too disabled to work. He had been self-employed full-time as a home builder from January 1999 to December 2009. He had stopped working due to his service-connected disabilities. The Veteran reported on a January 2017 VA Form 21-4192 that, while self-employed as a builder and contractor, his work included construction management, on-site supervision, inspection “and hands on work in all phases of home building.” His service-connected disabilities had forced him to work part-time and hire “substitute workers as necessitated by [his] physical limitations including [ischemic heart disease] related exertion induced shortness of breath and limited mobility due to hip and knee disabilities.” He asserted that he was “no longer able to perform his duties as a home builder.” He last had worked in January 2010. The medical evidence dated prior to July 26, 2014, reasonably supports granting entitlement to a TDIU on an extraschedular basis. For example, on VA examination in September 2011, the Veteran reported that he was self-employed as a contractor and builder. He also reported that, although his service-connected coronary artery disease did not affect his ability to work, his service-connected bilateral knee disabilities and left hip disability significantly impacted his ability to work. He had to hire other people to do kneeling, bending, and lifting because he was unable to do that due to his bilateral knee and left hip disability symptomatology. It is undisputed that the Veteran was self-employed as a home builder and contractor until approximately January 2010 when he became too disabled to work. He has reported consistently that the symptomatology associated with his service-connected bilateral knee disabilities and left hip disability significantly impacted his ability to work before he was forced to stop working in approximately January 2010. He had to hire other people to perform the job duties associated with his prior work as a home builder and contractor because he could not kneel, bend, or lift due to the symptomatology associated with his service-connected bilateral knee and left hip disabilities. He also reported experiencing shortness of breath due to his service-connected coronary artery disease. Taken together, the record evidence as a whole persuasively suggests that the Veteran was precluded from securing or maintaining a substantially gainful occupation solely as a result of his service-connected disabilities prior to July 26, 2014, when he met the schedular criteria for a TDIU. The Board acknowledges that the Director, Compensation Service (“Director”), found that the Veteran is not entitled to a TDIU on an extraschedular basis prior to July 26, 2014. The Board notes that it is not bound by the Director’s decision. As the Director herself stated in her decision denying entitlement to an extraschedular TDIU prior to July 26, 2014, “The test of whether a person is unable to pursue substantially gainful employment is whether a job is realistically within the physical and mental capabilities of the claimant.” Here, the Board is persuaded (as the Director was not) that the Veteran’s former job of a home builder and contractor is not “realistically within the physical and mental capabilities of the claimant.” The combination of occupational impairments imposed on the Veteran by his service-connected coronary artery disease (shortness of breath) and his bilateral knee and left hip disabilities (an inability to kneel, bend, or lift) precludes him from securing or maintaining a substantially gainful occupation as a home builder and contractor. The Board finds it highly significant that the Veteran reported that, when he worked as a home builder and contractor, he had to hire others to do the physical tasks involved with this job because he physically could not perform these routine tasks solely as a result of the occupational impact of his service-connected disabilities. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a TDIU on an extraschedular basis from January 1, 2010 have been met. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.