Citation Nr: 21023875 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-37 353 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), from April 5, 2010, to September 11, 2012, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities render him unable to secure and follow a substantially gainful occupation, from April 5, 2010, to September 11, 2012. CONCLUSION OF LAW The criteria for entitlement to TDIU from April 5, 2010, to September 11, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1951 to May 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and January 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In December 2020, the Board last remanded the matter for additional development to the agency of original jurisdiction (AOJ) for additional development. The AOJ obtained outstanding VA medical treatment records and referred the TDIU claim for extraschedular consideration. Therefore, the requested development for the claim adjudicated below has been completed, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU The Veteran contends that he is not able to work due to his service-connected disabilities, specifically asserting he retired in 1984 due to his back and legs. See VA Form 21-8940, received November 25, 2019. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. §§ 4.16 (a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to September 12, 2012 Entitlement to TDIU was raised during the pendency of the Veteran’s initial increased rating claim for his service-connected lumbar spine disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. As such, the period relevant to the present appeal begins on April 5, 2010, the effective date of service connection for the lumbar spine disability. Here, the Veteran's service-connected disabilities had a combined disability rating of 60 percent during the timeframe on appeal, which included his lumbar spine at 40 percent, ulcer at 20 percent, and hemorrhoids at 10 percent. Therefore, he does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a). Nevertheless, where the schedular criteria set forth above are not met, but a Veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service (Director) for extraschedular consideration. See 38 C.F.R. § 4.16 (b). Accordingly, in December 2020, the Board remanded the claim for consideration of an extraschedular TDIU to the Director. In January 2021, the AOJ sought an opinion from the Director, and in the same month, the Director provided an opinion regarding the request for extraschedular TDIU. The Director concluded that entitlement to TDIU on an extraschedular basis was not warranted, as there was no indication that any of the Veteran’s service connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment. However, the Board notes that 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). Therefore, the Board will now independently consider whether the Veteran is entitled to an extraschedular TDIU. After weighing the medical and lay evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for awarding TDIU on an extraschedular basis are met. See 38 C.F.R. § 4.16 (b). Following discharge from the service, the Veteran was employed in construction, then, as a grocery store clerk. He did not have additional training or education beyond high school. As noted, he retired in 1984, and reported his back and legs interfered with his ability to stand and walk. See November 2019 VA Form 21-8940. He had not worked since 1984. Id. The evidence of record supports that the Veteran’s service connected disabilities significantly impacted his ability to work as far back as 1984. At a June 1984 neuropsychiatric examination, the Veteran reported he was not employed, and work stress became too severe. He further explained that whenever he became upset, he experienced increased peptic ulcer difficulties, causing vomiting and severe stomach pain. In April 1987, the Veteran submitted a VA statement reporting he had been unable to work for the past four years. A May 2011 gastroenterology VA examination for hemorrhoids indicated the Veteran was retired and experienced anal itching, difficulty passing stool, and occasional fecal leakage due to the disability, which was found to have significant effects on occupational by causing increased absenteeism. In September 2011, a back VA examination revealed less movement than normal, pain on movement, weakened movement, guarding and/or muscle spasms, deformity of the spine, and excess fatigability. The examiner did not find the spine disability caused a functional impact upon the Veteran’s ability to work, noting he had been retired for fifteen years. A private medical treatment record from September 2012 indicated the Veteran had back pain with bending at the waist, pain with sitting, and a sitting tolerance of only 15 minutes. See Elite Physical Therapy treatment record, received September 28, 2012. The Veteran’s private provider found the Veteran was totally disabled and noted low back pain, which intermittently radiated to both thighs, and a long history of ulcer disease with bleeding. See Statement by Dr. G.R., received August 2012. In an October 2020, the Veteran submitted an assessment from a private vocational expert. The expert reviewed the entire evidentiary claims file, including VA examinations, medical records, and VA decisions of record, to perform an analysis of the Veteran’s work history and transferable skills. The expert found the Veteran would not be able to transition from sitting to standing in a timely manner, would not be able to persist at tasks without an unreasonable amount of unscheduled breaks, and that lapses in productivity would occur. See May 2020 Vocational Assessment, received October 21, 2020. Further, he opined that the Veteran would have unscheduled absences of more than once per month and the absenteeism would lead to his termination, as most employers do not deem the quality a good fit for employment. Id. The expert concluded with a high degree of certainty that the Veteran had been unable to secure, follow, or maintain and sustain any form of a substantially gainful occupation as a result of his service-connected disabilities since he stopped working in 1984 because he had difficulties standing for extended periods of time and experienced discomfort from nausea and vomiting. Id. Given the Veteran’s credible lay statements, explaining he retired due to his service-connected back limitations, and the functional and occupational limitations described by the vocational expert and private and VA medical evidence of record, the Board finds that the Veteran's service-connected disabilities would likely prevent him from obtaining and maintaining gainful employment. The service-connected lumbar spine disability, ulcer, and hemorrhoids would limit the Veteran's physical and mental abilities. The service-connected disabilities would result in difficulties reading, driving, and concentrating, and would impact his ability to perform work with prolonged sitting and/or standing. Moreover, his service-connected disabilities prevent the type of employment he previously engaged in as a construction worker and store clerk as he does not have the coordination or stamina necessary to stand on his feet, bend, squat, reach, and/or transition between these movements to perform physical tasks. Ultimately, the Board finds that the preponderance of the evidence establishes that the Veteran, given his occupational history and functional limitations, is unable to obtain or retain substantially gainful employment due to his service-connected disabilities, from April 5, 2010. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.