Citation Nr: 21023070 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-04 115 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) to include on an extraschedular basis is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise regarding whether the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU to include on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Army from June 1999 to July 2008. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Addressing the most relevant procedural history, in April of 2019, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) in response to the Veteran’s appeal of the Board’s July 2018 denial of his TDIU claim. The TDIU claim was subsequently returned to the Board and remanded it for extraschedular consideration by the Director of Compensation and Pension Service. The claim has now been returned to the Board for further appellate review. Entitlement to TDIU is granted. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, it has been asserted that TDIU is warranted because the Veteran’s “SC back and left leg conditions have resulted chronic pain with difficulties standing, sitting, and walking; instability with impaired balance; and fatigue, which impacts his ability to satisfy the requirements of adequate pace, productivity, and reliability” and “[h]is service-connected PTSD further precludes the Veteran from substantially gainful employment as it has resulted in chronic paranoia, irritability, hypervigilance, impaired motivation, a need to isolate daily, impairments in his memory and concentration, anxiety.” See February 2021 Third Party Correspondence. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In that regard, the Board also initially notes that the parties agreed in relevant part in the JMR that the Board previously failed to properly define “sedentary work” or give it any context as required by Withers v. Wilkie, 30 Vet. App. 139, 147 (2018). As “sedentary” is defined as “[r]equiring or marked by much sitting (a sedentary desk job)”, the Board finds that sedentary employment is a job where the worker primarily sits down. See WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, it is uncontroverted that the Veteran does not meet the threshold schedular disability percentage requirement for a TDIU consideration until January of 2020 as a result of his service-connected PTSD, thoracolumbar spine strain with sprain and spondylosis, left lower extremity sensory neuropathy of the sciatic nerve, tinnitus, hypertension, right lower extremity radiculopathy, and left hand burn scar. 38 C.F.R. § 4.16 (a). It is additionally noted that the Veteran’s VA Form 21-8940 indicates that post-service, he previously worked as an equipment operator and fitter’s apprentice and has one year of college education in addition to completing high school. He also completed an entry-level welder program and started, but did not complete, a community college technology program or university technology program. If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), as in this case, he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In September of 2020, the Board remanded this claim for referral by the Director for extraschedular consideration of a TDIU. The record reflects that the Director denied the Veteran’s extraschedular TDIU claim in January of 2021. The Court held in Ray that the Board’s determination to refer a case for extraschedular consideration under § 4.16 (b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray, 31 Vet. App. at 3. See also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director’s extraschedular decisions). Here, in contrast with the determination made by the Director, the Board finds that TDIU is warranted on both an extraschedular and schedular basis (for the respective periods during which the Veteran did and did not meet the rating criteria) as there is sufficient evidence of record to determine that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. After a thorough review of the evidence of record, the Board finds most influential a November 2019 vocational assessment report authored by a private examiner. Following a detailed review of the medical evidence of record and consideration of the lay statements made by the Veteran, the examiner concluded that, “it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, to include sedentary unskilled employment, since at least May 2013 through the present”. In addition, the examiner asserted that “[the Veteran] is unable to meet the physical requirements of even sedentary exertional level at substantially gainful activity levels due to his service-connected thoracolumbar spine condition and left lower extremity sensory neuropathy”. In particular, the private examiner stated that “[t]he aforementioned physical limitations resulting from the veteran’s service-connected back and left lower extremity conditions are inconsistent with the exertional demands of even sedentary work. As noted above, [the Veteran] is unable to sit, stand or walk for prolonged periods due to pain and weakness in his back and left lower extremity. Specifically, his inability to sit for more than 30 minutes, walk for more than 300 yards and stand longer than 15 minutes are incongruent with the physical requirements of sedentary work, which require sitting for most of the day and standing and walking occasionally which is defined as up to 1/3 of the workday”. Therefore, the examiner concluded that the Veteran “would need to alternate positions between sitting and standing at least every 15 to 30 minutes in [an] attempt to minimize pain and discomfort in his back and left lower extremity. This would result in the inability to sustain focus for at least two hours at one time and would require excessive unscheduled breaks, which would not be tolerated in competitive employment. Further, as outlined above, the veteran is required to elevate his lower extremities to alleviate pain in his back and left lower extremity which would also not be tolerated in competitive employment.” The Board also notes that multiple VA examiners have authored opinions reaching differing conclusions. See e.g. September 2013 and April 2016 Compensation and Pension examinations. However, the November 2019 vocational assessment report is highly probative evidence as it relied on sufficient facts and data, provided a rationale for the opinion, and contained sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is aware that the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Nonetheless, the Board finds that this opinion is reflective of the medical evidence present in this case and therefore relies on it in finding that TDIU is warranted in this case. The Board acknowledges the negative determination by the Director in January of 2021 as well. The Board is not, however, bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. See Wages, 27 Vet. App. 233, 236. The Board finds that the Veteran’s service-connected disabilities, particularly his back and psychiatric conditions, would preclude even sedentary work. Given the Veteran’s limited education and his primary employment in physical and manual labor, the Board finds it unlikely he would be able to obtain an office-type position or a position where he did not have to walk or stand and was allowed to elevate his lower extremities and take frequent unscheduled breaks. Based on the foregoing, the Board finds the evidence is at least in equipoise as to whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Resolving the benefit of the doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU to include on an extraschedular basis is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.