Citation Nr: 21024652 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-17 662 DATE: April 23, 2021 ORDER From August 23, 2012, to August 11, 2020, entitlement to extraschedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. From August 12, 2020, entitlement to schedular TDIU is granted. FINDING OF FACT Resolving doubt in favor of the Veteran, he was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities throughout the claims period. CONCLUSIONS OF LAW 1. From August 23, 2012, to August 11, 2020, the criteria for a TDIU were met on an extraschedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From August 12, 2020, the criteria for a TDIU were met on a schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1971 to March 1974. The Veteran died in December 2020, and his spouse has been substituted as the appellant. This appeal arises from a December 2013 rating decision. In October 2018, the Board remanded this TDIU claim as intertwined with the determination of an increased rating claim. In September 2020, the Board remanded this TDIU claim for referral to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). The Decision Review Operations Center (DROC) prepared a September 2020 memorandum to the Director recommending a grant of extraschedular TDIU from January 14, 2014. In January 2021, the Director determined that an extraschedular TDIU was not warranted. The Board finds that there has been substantial compliance with the Board’s former remands and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. From August 23, 2012, to August 11, 2020, entitlement to extraschedular TDIU is granted. 2. From August 12, 2020, entitlement to schedular TDIU is granted. This appeal stems from the Veteran’s TDIU claim filed on August 23, 2012, seeking special consideration for unemployability due to his service-connected left shoulder disability indicating that he was an auto mechanic with only 2 years of high school education and that was “all” he knew how to do, but because of his left shoulder disability, he was no longer able to perform those duties. He also noted, however, non-service-connected issues, to include an angina attack and low back pain. Resolving all reasonable doubt in favor of the Veteran, however, the Board finds that the Veteran was in fact unemployable largely due to service-connected disabilities throughout the appellate time frame and, therefore, TDIU is warranted. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Board will examine a veteran’s specific work and education history in evaluating the impact of physical and mental limitations on the ability to work. See also Rouse v. McDonough, Case No. 19-5699, 2021 U.S. App. Vet. Claims LEXIS 632 (April 13, 2021). The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Again, the Veteran filed a claim for TDIU, received by VA on August 23, 2012. As of August 23, 2012, the Veteran was service connected for hearing loss, rated noncompensable, tinnitus, rated 10 percent disabling, and left shoulder disability, rated 20 percent disabling, with a combined rating of 30 percent. As of December 13, 2012, the Veteran was service connected for hearing loss, rated noncompensable, tinnitus, rated 10 percent disabling, left shoulder disability, rated 20 percent disabling, and right shoulder disability, rated 20 percent disabling, with a combined rating of 50 percent. As of January 14, 2014, the Veteran was service connected for hearing loss, rated 20 percent disabling, tinnitus, rated 10 percent disabling, left shoulder disability, rated 20 percent disabling, and right shoulder disability, rated 20 percent disabling, with a combined rating of 60 percent. As of October 23, 2019, the Veteran’s left shoulder disability was increased to 30 percent disabling, with the other service-connected disabilities remaining the same, and the total combined rating of 60 percent remaining the same. As of August 12, 2020, the Veteran’s hearing loss disability was increased to 40 percent disabling, with the other service-connected disabilities remaining the same, and a total combined rating of 70 percent. Prior to August 12, 2020, the Veteran does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all veterans who are unable to obtain and maintain substantially gainful employment by reason of service-connected disability or disabilities “shall be rated as totally disabled.” 38 C.F.R. § 4.16(b). If a veteran fails to meet the percentage requirements but is nevertheless rendered unemployable by reason of one or more service-connected disabilities, the matter must be submitted to the Director of Compensation and Pension for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Board remanded the TDIU claim for referral to the Director for consideration of an extraschedular TDIU. In January 2021, the Director determined that an extraschedular TDIU was not warranted. The Board is not bound by the Director’s findings. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extra-schedular consideration). As of August 12, 2020, the Veteran meets the schedular criteria for TDIU. In this case, resolving all doubt in favor of the Veteran, the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities throughout the claims period, including the period of time he met the schedular requirements and that where he did not. The Veteran completed 10th grade with no other education or training before he reported that he was too disabled to work. He served in light weapons infantry during service. He reported that he became too disabled to work in 2004 and that he left his job as a mechanic due to his service-connected left shoulder disability. He reported that he has worked on automobiles since he left service and that he cannot work without being able to use his left arm. Historically, a March 2008 VA examiner noted that the Veteran’s tinnitus disability interferes with sleep and hearing and communication. A December 2012 VA examiner noted the Veteran’s left shoulder flare-ups include limited raising of the arm and lifting of weight and sharp pain down to his fingers. The VA examiner noted limited movement, weakened movement, excess fatigability, and pain on movement. The VA examiner explained that he is unable to lift heavy loads, to reach anything above his head, or to reach forward to pick up things. The VA examiner opined that the Veteran’s service-connected left shoulder disability renders him unable to secure and maintain substantially gainful employment which requires him to use his left arm and hand, but that he could work as a cashier or perform clerical work where only the use of his right arm/hand is needed. A September 2013 VA examiner evaluated the Veteran’s shoulders and noted that the Veteran’s work as an auto mechanic involves lifting which is painful and difficult due to both shoulders. While the Veteran depended on his right shoulder more to lift and pull in the past due to his left shoulder, his right shoulder is also painful. A July 2014 VA examiner noted the Veteran’s hearing loss and tinnitus disabilities impact his ability to work in that he is unable to hear and sleep well. A December 2019 VA examiner noted that the Veteran’s shoulders resulted in limitations in reaching, carrying, pushing, pulling, and lifting light to moderate objects from below the waist and above. The VA examiner explained the Veteran is unable to write or type due to shoulder pain. An October 2020 VA examiner noted that the Veteran reported not being able to hear others and becoming aggravated by asking others to keep repeating statements. The Veteran reported that even small movements, such as reaching into a cabinet, result in sharp pain that travels from the shoulder down into the center of the hand. See October 2013 Veteran’s Statement. The Veteran also reported that side effects from his medications (hydrocodone) for his service-connected shoulder disabilities impact his ability to work, including drowsiness. He reported that the medications interfere with his ability to work for safety reasons. See May 2014 Substantive Appeal; January 2014 Notice of Disagreement. The Veteran’s VA treatment records show the Veteran was prescribed hydrocodone for his shoulder pain during the relevant time period. Given the Veteran’s combined functional impairment due to his service-connected disabilities, including the Veteran’s bilateral upper extremity limitations with reaching, carrying, pushing, pulling, and lifting even light to moderate objects, both below the waist and above, and his reported drowsiness from his medications, and his difficulties with sleeping and communicating, and considering his educational and occupational history, the Board finds the evidence is in equipoise as to whether the Veteran’s service-connected disabilities prevented him from securing and maintaining gainful employment throughout the claims period. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.