Citation Nr: 21023315 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-44 581 DATE: April 20, 2021 ORDER Subject to the law and regulations governing the award of monetary benefits, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to February 13, 2020, on an extraschedular basis, is granted. FINDINGS OF FACT 1. Prior to February 13, 2020, the Veteran did not meet the schedular criteria for a TDIU rating. 2. Prior to February 13, 2020, the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, considering educational and employment background. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to February 13, 2020, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1984 to March 1988. This appeal arose from a March 2014 rating decision. In October 2018 and January 2020, the Board remanded the claim of entitlement to a TDIU rating for further evidentiary development. In August 2020, the Board granted entitlement to a TDIU rating from February 13, 2020, and remanded entitlement to a TDIU rating prior to February 13, 2020, for referral to the Director of Compensation Service for extraschedular consideration. Where the percentage requirements under 38 C.F.R. § 4.16(a) for entitlement to a TDIU rating are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board must refer the claim to the Director of Compensation Service to consider entitlement to a TDIU rating on an extraschedular basis. 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 v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a Veteran to prevail on a claim for a TDIU, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to February 13, 2020, the Veteran was service connected for unspecified depressive disorder (rated at 30 percent disabling from September 14, 2011 to February 12, 2020), tinnitus (10 percent disabling from March 9, 2017), tussive syncope (10 percent disabling from September 14, 2011), and chronic sinusitis (noncompensable from September 14, 2011, 10 percent from December 10, 2012, and noncompensable from January 1, 2021). Turning now to the relevant evidence of the record, regarding the Veteran’s occupational and educational background, he completed 12 years of education (completing up to four years of high school) and had 12 months of technical training. The longest full-time job he had was for four years. Most of the Veteran’s work has been as a deck hand. In recent years, the Veteran has worked on a farm, from May 2010 to January 2013. See October 2002 VA Medical Treatment Records; April 2013 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). In September 2011, the Veteran expressed that the severity of his chronic sinusitis had worsened, to the degree that he coughed uncontrollably to the point of losing consciousness. See September 2011 Statement in Support of Claim (VA Form 21-4138). The Veteran’s family and friends have endorsed witnessing the Veteran losing consciousness after coughing. The Veteran’s son expressed that he witnessed the Veteran experiencing a coughing episode while sitting down. See February 2013 Buddy/Lay Statement. On the October 2012 VA Examination for Mental Disorders, the Veteran reported working on a farm, on which he enjoyed. Additionally, the Veteran again expressed that his sinus problems were so severe that they caused him to miss work. He reported that his boss bought him a respirator to wear while working in the fields. The Veteran expressed difficulty keeping the mask on because of the heat. The Veteran’s employer at the farm expressed that the Veteran was prohibited from operating tractors and climbing on top of the grain bins. The employer stated that the limitations were not conducive to the line of work required in that field. The reason provided was due to the Veteran “passing out.” See April 2013 Request for Employment Information in Connection with Claim for Disability (VA Form 21-4192). At the March 2014 VA Examination for Mental Disorders, the Veteran reported that his work at the farm was seasonal. He was laid off because the work he was able to do was simply too limited. The Veteran’s primary care provider also advised the Veteran not to drive or operate machinery due to the Veteran’s coughing leading to unconsciousness. The Veteran endorsed symptoms of lack of motivation, poor concentration, and motor restlessness or agitation due to his mental disorder. In April 2015, the Veteran reported several instances of unconsciousness after his coughing episodes. He reported that he estimated being unconscious for 20 to 25 seconds. He expressed that when he awakens, he felt confused and had no memory of the event when initially awakening. See April 2015 Cardiology Consult Note (January 2020 VA Medical Treatment Records [CAPRI]). On the April 2017 VA Examination for Hearing Loss and Tinnitus, the Veteran reported that his tinnitus was distracting and made him feel depressed. He indicated that it affected his ability to concentrate and communicate. In October 2018, the Veteran reported starting a new job at the Mississippi Limestone and was working 12 to 14 hours per day. It was a seasonable job. It was noted that he began using substances (drugs) again. In August 2018, the Veteran spent time in jail due to possession of drugs, which resulted in losing his job. See October 2018 Addendum (August 2019 VA Medical Treatment Records [CAPRI]). In September 2019, the VA examiner opined that the Veteran’s sinusitis and tussive syncope impacted his ability to work; specifically noting he was unable to perform any jobs that included operating any kind of machinery due to increased pressure of sinus. The examiner explained that if the Veteran was not able to blow his noise, he would lose consciousness. See September 2019 VA Examination Report. On the February 2020 VA Examination, the examiner determined that the Veteran’s substance use was secondary to his chronic conditions and his depression, as it was a maladaptive form of self-medication and avoidance of troubling symptoms. In September 2020, VA recommended to the Director of Compensation Service that entitlement to a TDIU rating should be granted from January 2013, which was the Veteran’s last day employed at the farm. See September 2020 VA Memo. The Direction of Compensation Service issued two determinations regarding entitlement to TDIU on an extraschedular basis. In September 2019, the Director determined that an assignment of an extraschedular TDIU rating was not warranted due to the Veteran’s service-connected disabilities. The Director stated that there were several non-service-connected disabilities that were not differentiated from the service-connected disabilities. The Director also reasoned that while the evidence showed that the Veteran was limited in performing duties associated with a certain position, the evidence did not convincingly show that the Veteran’s service-connected disabilities precluded him from working in other positions. See September 2019 VA Memo. In November 2020, with service connection for depressive disorder established prior to February 13, 2020, the Director still determined that entitlement to a TDIU rating prior to February 13, 2020 was not warranted. The Director reasoned that there were other jobs that required light activity that could be performed with the Veteran’s level of education. The Director stated there were records which noted that the Veteran was actively receiving employment and working with vocational rehabilitation program. See November 2020 VA Memo. The Board notes that the Veteran was in a Compensated Work Therapy (CWT) program in November 2018 for seven months. The Veteran reported that he did not feel like working and left early. See February 2020 VA Examination Report for Mental Disorders. Compensation received from the CWT program is not counted as income for individual unemployability purposes. Furthermore, the Veteran's participation in CWT or receipt of a distribution as a result of CWT participation alone cannot be used as a basis for the denial of a TDIU. Additionally, the Veteran’s seasonal work is considered to be marginal employment, based on his annual income not exceeding the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold. 38 C.F.R. § 4.16 (a). In Faust v. W., 13 Vet. App. 342 (Feb. 2000), the Court of Appeals for Veterans Claims (Court), found that 38 C.F.R. § 4.16(a) "does not define what 'substantially gainful employment' is;' [however], it does provide that 'marginal employment' is not substantially gainful employment. See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 ("the ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment."). As such, in this current matter, the Veteran's seasonal work is considered marginal. After a thorough consideration of the evidence, including the Veteran's limitations due to his service-connected disabilities, and his educational background and work experience, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was unable to secure and follow substantially gainful employment prior to February 13, 2020 due to his service-connected disabilities. It is evident that the Veteran is precluded from performing highly physical labor or labor that requires running machinery due to his sinusitis and tussive syncope. The Board also determines that due to his disabilities, the Veteran is precluded from performing work duties that require light physical labor, such as sitting. It has been shown in the medical records, and reported by the Veteran’s family, that the Veteran’s cough episodes and resulting unconsciousness occurred while the Veteran was sitting still. The Veteran experienced confusion and slight memory difficulties after such episodes. The Veteran’s sinusitis and tussive syncope were actually worse in severity prior to February 13, 2020. Additionally, the Veteran has reported being distracted due to his tinnitus and experiencing poor concentration due to his psychiatric disorder. The evidence shows that the severity of the Veteran's service-connected disabilities greatly impacted his ability to perform not only the physical duties, but also the mental acts required by employment prior to February 13, 2020. (Continued on the next page)   Accordingly, the Board finds that entitlement to a TDIU rating due to the Veteran's service-connected disabilities is warranted prior to February 13, 2020, on an extraschedular basis. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.