Citation Nr: 21023125 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-21 595 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective September 2, 2008. REMANDED Entitlement to TDIU on an extraschedular basis prior to September 2, 2008, is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation since September 2, 2008. CONCLUSION OF LAW The criteria for entitlement to a schedular TDIU have been met beginning September 2, 2008. 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 honorably in the United States Army form July 1968 to July 1971. 1. Entitlement to TDIU is granted effective September 2, 2008 The Veteran was granted a TDIU effective January 22, 2018. The Veteran has alleged his TDIU should be granted an earlier effective date based on his inability to work prior to January 22, 2018. For the reasons discussed herein, the Board finds that a schedular TDIU is warranted beginning September 2, 2008. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 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 impairment 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). During the period prior to January 22, 2018, the Veteran was not in receipt of a 40 percent or higher rating for any individual disability. However, service connection was in effect for bilateral lower extremity radiculopathy, with each extremity rated as 20 percent disabling. Pursuant to 38 C.F.R. § 4.25, combination of these two ratings results in a 40 percent rating. As noted above, these two lower extremity disabilities may be considered one disability for purposes of 38C.F.R. §4.16(a). Further review shows that during this period, the Veteran’s combined rating was 80 percent (with the exception of several periods where he was assigned temporary 100 percent ratings). Based on the foregoing, the Veteran met the schedular criteria for a TDIU beginning September 2, 2008. The Board does not have jurisdiction to grant a TDIU in the first instance for the period prior to September 2, 2008, because the Veteran does not meet the percentage requirements for a schedular TDIU rating before that date. The issue of a TDIU prior to September 2, 2008 is addressed in the remand portion of this decision. Turning to the evidence, first, the Board must determine when the Veteran was actually unemployed. The Veteran’s August 2008 Application for Increased Compensation Based on Unemployability noted that he last worked full time in January 2008 doing collections. In October 2008, the Veteran applied for vocational rehabilitation citing an inability to perform his past work due to physical impairments. The Veteran’s vocational rehabilitation was stopped due to his medical status in November 2009. Upon a review of the record, the evidence is conflicting as to whether the Veteran was unable to maintain substantially gainful employment during this period. For example, pursuant to a September 2008 VA examination report, an examiner stated the Veteran was mostly housebound and relied on crutches. May 2010 and September 2010 VA examiners stated the Veteran’s service-connected left ankle disability had significant effects on his occupational functioning. The record shows the U.S. Social Security Administration determined the Veteran was disabled as of January 28, 2008. The Veteran and his wife, ex-wife, mother, and a fellow service member have submitted statements detailing the significant impairment caused by his medical conditions. On the other hand, pursuant to a February 2013 VA general medical examination, a VA examiner evaluated all of the Veteran’s medical conditions and stated the Veteran had no predominant physical disability that would render him unable to secure and maintain substantially gainful employment. A VA psychiatric examination report also completed in February 2013 indicated that the Veteran had occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, but that he was generally functioning satisfactorily. The examiner stated that from a psychological perspective, the Veteran would be able to perform routine tasks in a job setting that did not require ongoing interaction with the general public. In a December 2014 report, a VA examiner indicated the Veteran’s service-connected lower back disability did not impact his ability to work. In this case, the evidence is in equipoise as to whether the Veteran’s service-connected impairments have prevented him from working prior to January 2018. Affording the Veteran the benefit of the doubt, the Board finds that he has had difficulty maintaining a job based on a combination of his physical symptoms. The record reflects that the Veteran was not gainfully employed throughout the appellate period. Indeed, the combination of the Veteran’s degenerative arthritis of the spine, bilateral radiculopathy, fracture of the tibia and fibula, degenerative joint disease of the shoulder, and left ankle and left knee arthritis would render any type of employment difficult, if not impossible. Based on the evidence above and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected physical and mental disabilities rendered him unable to secure or follow a substantially gainful occupation beginning September 2, 2008, and therefore, entitlement to a TDIU is warranted during this time. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU prior to September 2, 2008 is remanded. Prior to September 2, 2008, the Veteran does not meet the criteria for a schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Therefore, any award of TDIU would be on extra-schedular basis. A claim for a TDIU may be referred to Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board finds the evidence supports that the Veteran has not been substantially gainfully employed since at least January 2008. See August 2008 Application for Increased Compensation Based on Unemployability. In the August 2008 Application for a TDIU, the Veteran stated he lost his job because his knees were swelling and hurting, and he had problems with his back and shoulder pain. He stated he was laid off due to his illness. Accordingly, this matter should be referred to the Director of Compensation Service to determine whether an extraschedular TDIU is warranted. The matter is REMANDED for the following action: The AOJ should refer this case to the Director of Compensation Service for consideration of extra-schedular TDIU prior to September 2, 2008. J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.