Citation Nr: 21023924 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-09 453 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is granted. FINDING OF FACT The Veteran’s combined rating for service-connected compensation prior to October 12, 2020 is 60 percent; and she is unable to secure or follow a substantially gainful occupation as a result of her combined service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. Most recently in September 2020, the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an extraschedular TDIU due to service-connected disabilities, on an extraschedular basis, is granted. The Veteran is seeking entitlement to a TDIU. Specifically, she contends that prior to October 12, 2020 she was unable to obtain and maintain gainful employment due to her service-connected disabilities. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a). In the current appeal, service connection has been granted for major depressive disorder, tinnitus, right and left hip degenerative joint disease, left wrist fracture residuals, right and left knee patellofemoral pain syndrome, right and left knee instability, hearing loss, left hip limitation of flexion, and right elbow epicondylitis. The Veteran’s combined rating prior to October 12, 2020 is 60 percent. As such, for the period on appeal, the Veteran does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). While the Veteran does not meet the criteria for a TDIU on a scheduler basis, she has maintained that her conditions result in an inability to secure or follow a substantially gainful occupation prior to October 12, 2020; therefore, a TDIU on an extraschedular basis must be considered. As noted above, in a September 2020 decision, the Board determined that the Veteran’s disabilities met the criteria for referral to the Director of VA’s Compensation and Pension Service (Director). In November 2020, the AOJ recommended entitlement to a TDIU on an extraschedular basis, effective August 2014. The Director denied entitlement to an extraschedular TDIU in January 2021. Because the Director has adjudicated this question, the Board is now permitted to exercise jurisdiction over this issue. Wages v. McDonald, 27 Vet. App. 233 (2015). VA regulations provide that all Veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Turning to the evidence of record, in July 2013 VA examinations, the Veteran reported that she was unable to work because she was committed to being her mother’s caregiver. VA examiners found that the Veteran’s service-connected disabilities restricted her from lifting more than 15 pounds or sitting for more than 30 minutes. She was also likely to drop objects and had difficulty hearing soft spoken individuals. See also June 2019 VA Audiological Examination; November 2015 VA Audiological Examination. In June 2019 VA examinations, the Veteran’s service-connected disabilities were found to affect her ability to work in environments that required prolonged standing, sitting, or climbing ladders. In July 2019, the Veteran reported that she had not worked since 2015. As indicated above, in November 2020, the AOJ recommended to the Director that the Veteran be entitled to an extra schedular TDIU, effective August 2, 2014. The AOJ described the Veteran’s service-connected disabilities and detailed the evidence of record. Specifically, the AOJ noted that in her July 2019 VA Form 21-8940, the Veteran reported last working full-time on June 3, 2014 and that her disability affected full-time employment as of August 2014. She indicated that she was unable to communicate effectively and falling easily. She reported having four years of high school education but denied any other education or training. In addition, in a July 2019 VA Form 21-4192 the Veteran reported that she had not worked in the last 5 years and being in receipt of Social Security benefits beginning in 2015. The AOJ also noted that records from the Social Security Administration (SSA) shows the Veteran is too disabled to work due to the late effects of the nervous system and chronic liver disease, which are not service-connected disabilities. The Veteran reported last working as a live in-home caregiver (from 2011-2014). Of note, the psychiatric evaluation contained therein shows a diagnosis of depressive disorder and the evaluator determined that this condition results in difficulties with concentration, verbal concept information, and judgment. Also, of note, the Vocational explanation indicates the Veteran is limited to unskilled work and that she does not have any transferrable skills. The AOJ further indicated that the VA examinations of record clearly show the service-connected hips, knees, and shin splints impede the Veteran’s ability to work in a physical/laborious field of employment. Additionally, her service-connected depressive disorder results in difficulties with concentration, verbal concept information, and judgment. Based on the totality of the record, the AOJ concluded that the available evidence supports the Veteran’s contention that her service-connected disabilities or a combination of the effects of the disabilities prevents all types of gainful activity for a period prior to October 12, 2020. In a January 2021 VA Memo, the Director denied entitlement to a TDIU for the period on appeal prior to October 12, 2020. Explaining her ruling, the Director acknowledged that the Veteran’s disabilities could have functional impact and impair prolonged activities and found that there is no evidence of inability to perform sedentary employment. The Director then described a few principles applicable to extraschedular ratings in general. She observed that extraschedular ratings are for exceptional or unusual cases and that the previously assigned schedular rating is itself a recognition that the Veteran’s service-connected disabilities make it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Having considered the evidence, the Board finds that, affording the Veteran the benefit of the doubt, it is at least as likely as not that the Veteran’s combined service-connected disabilities prevented her from obtaining and following a substantially gainful occupation prior to October 12, 2020. Specifically, the evidence of record shows that the Veteran has a high school education and was unable to lift heavy objects, sit more than 30 minutes, walk more than 2 blocks, climb, had difficulty hearing and communication, and had difficulty with concentration and judgment. In reaching this determination, the Board has considered that the Director reached a contrary finding when she denied an extraschedular TDIU rating in January 2021 The Board, however, does not defer to the Director’s findings, see Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009), and is required to consider the Veteran’s individual education, experience, and work history when reviewing the denial of a TDIU rating. See Pederson v. McDonald, 27 Vet. App. 276, 286-87 (2015) (en banc). Here, although the Director’s decision includes correct statements of the law, it did not analyze the Veteran’s education and work history or explain how these circumstances favored the conclusion that her service-connected disabilities were compatible with full-time, gainful employment. The Director also does not reconcile her determination that the Veteran has no impediments to a sedentary job with the evidence of record indicating that the Veteran was found unable to sit for more than 30 minutes by a VA examiner. These factors, in addition to the Veteran’s lack of an education beyond the high school, are favorable to her TDIU claim. Based on the foregoing, the Board finds that the evidence is at least evenly balanced as to whether, due to service-connected disabilities, the Veteran was unable to secure or follow a substantially gainful occupation prior to October 12, 2020. Resolving reasonable doubt in the Veteran’s favor, entitlement to an extraschedular TDIU is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.