Citation Nr: 21023737 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-47 284 DATE: April 21, 2021 ORDER Subject to the law and regulations governing the award of monetary benefits, from June 7, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to June 7, 2018 is remanded. FINDING OF FACT From June 7, 2018, the Veteran meets the schedular criteria for a TDIU rating, and his service-connected disabilities precludes him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW From June 7, 2018, the criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to September 1992. This appeal initially arose from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. However, the jurisdiction is currently before the RO in St. Paul, Minnesota. In June 2018, November 2019, and December 2020, the Board remanded the issue of entitlement to a TDIU for further evidentiary development. Specifically, the Board remanded this issue to afford the Veteran an opportunity to submit a completed VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). The Agency of Original Jurisdiction (AOJ) sent the Veteran the appropriate forms necessary to conduct additional development for his TDIU claim multiple times. See February 2019, January 2020, and December 2020 Subsequent Development Letters. The Veteran did not complete and submit those forms. VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his/her part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Here, the Veteran has been provided opportunities to submit the requested information. Therefore, the Board determines that the duty to assist in this matter has been satisfied, and the Board will proceed with considering the merits of the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). Entitlement to a TDIU from June 7, 2018 A total disability rating for compensation purposes 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 service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). In this current matter, the Veteran meets the schedular criteria for consideration of a TDIU rating under 38 C.F.R §4.16(a) from June 7, 2018. Thus, the question for the Board in this aspect of the appeal is whether the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. Regarding the Veteran’s educational background and occupational history, based on the records available, the Veteran received his high school diploma. Prior to joining the military, he completed several college courses but did not obtain a degree. He reported working at a commissary or a grocery store but did not provide those dates. In 2016, he noted that he had not worked in over 10 years. He felt unable to continue working due to his back pain. On the June 2013 VA Examination for Back Conditions, it was reported that his back condition prevented him from lifting, carrying heavy objects, repeated bending and stooping. In April 2015, he reported that he was unable to engage in any strenuous activity due to his back condition. The examiner determined that the functional impact was mild to moderate pain with strenuous activity. See April 2015 VA Examination Report for Back Conditions. In May 2016, the Veteran was unable to “push up” due to his left finger disability. See May 2016 VA Examination Report for Hand and Finger Conditions. The Veteran experienced tension headaches as a residual of his traumatic brain injury. Due to those headaches, the Veteran had to take breaks. See May 2016 VA Examination for Headaches. At July 2018 VA Examination indicates that, due to the Veteran’s right achilles condition, he was limited in ambulation and standing. Also, he was advised to avoid lifting or carrying objects of no more than 10 to 15 pounds due to his back condition. See July 2018 VA Examination Report for Back Conditions. In March 2019, the VA examiner opined that, due to the Veteran’s back condition, he would not function well in physical roles. The examiner opined that the Veteran would function well in predominantly sedentary work, which involved sitting most of the time. The examiner provided examples of job positions which involved little physical activity such as sitting. See March 2019 VA Examination Report for Back Conditions. On the December 2019 VA Examination for Mental Disorders, it was reported that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran’s psychiatric symptoms included experiencing memory difficulties. On the January 2020 VA Examination for TBI, it was reported that the Veteran had difficulties with concentration. He experienced mild memory loss (such as difficulty following a conversation, recalling recent conversations), attention, concentration, or executive functions. Regarding motor activity, it was mildly slowed at times due to apraxia, which was the inability to perform previously learned motor activities, despite normal motor function. He reported experiencing occasional headaches, sensitivity to bright lights and loud noises, and occasional communication impairment. As to functional impact, it was noted that the Veteran went off on tangents when speaking and did not answer questions directly. His speech, ambulation, motor activity, and thought processes were slowed. The examiner concluded that his ability of function impaired his ability to work. After a thorough consideration of the evidence of the record, such as the Veteran's limitations due to his symptoms and the educational and occupational history provided in the records, and in resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence shows that the Veteran’s service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment from June 7, 2018. The evidence clearly depicts that the Veteran's back disability and other physical disabilities significantly impacts his physical ability to perform tasks, such as lifting, standing, and walking. The evidence also shows that the Veteran’s psychiatric disorder with residuals of TBI significantly impact his ability to perform tasks that require only light physical activity required by the job positions noted by the March 2019 VA examiner. The Veteran’s speech, concentration, and memory have been shown to be greatly impaired. These impairments factor into both his mental and physical ability to perform tasks required by sedentary job positions, such as a desk job. Based on his prior work experience noted in the records, he has not held a job similar to the positions noted in the March 2019 VA examination report. When considering the evidence in its totality, the Board finds that the Veteran’s disabilities would render him unable to perform both the physical and mental acts of employment. Accordingly, from June 7, 2018, the Board finds that entitlement to TDIU rating due to his service-connected disabilities is warranted in this matter. REASONS FOR REMAND Entitlement to a TDIU prior to June 7, 2018 The Board finds that the evidence of record warrants a referral for consideration of a TDIU rating on an extraschedular basis prior to June 7, 2018. In this regard, where the percentage requirements under 38 C.F.R. §4.16(a) 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 has no 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). 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. Prior to June 7, 2018, service connection was in effect for a back, TBI residuals (then characterized as status post mild cerebral concussion with tension headaches), hearing loss, tinnitus, left finger fracture, right achilles, and left eye disabilities. During that portion of the appeal period, the Veteran’s combined service-connected disability rating was no higher than 50 percent. The evidence indicates that, prior to June 7, 2018, the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. His back, left finger, and right achilles condition impacted his ability to perform physical acts of employment, while his residuals of a TBI may have impacted his ability to perform the mental acts of employment. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation Service to consider entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service for consideration of entitlement to extraschedular TDIU is warranted. 38 C.F.R. § § 4.16 (b). Accordingly, this matter is REMANDED for the following action: 1. Forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU due his service-connected disabilities on an extra-schedular basis prior to June 7, 2018, pursuant to the provisions of 38 C.F.R. § § 4.16(b). In connection with the referral, the AOJ should include a full statement outlining the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 2. Then, adjudicate the issue of entitlement to an extraschedular TDIU. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. THERESA M. CATINO 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.