Citation Nr: 21024829 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 09-15 166 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2010 is denied. Entitlement to a TDIU from June 1, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran does not meet the schedular requirement for a TDIU prior to June 1, 2010, and the combined effects of his service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment. 2. The Veteran meets the schedular requirement for a TDIU effective from June 1, 2010, and the combined effects of his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 1, 2010, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. 2. Effective June 1, 2010, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1980 to July 1983 and December 1990 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing has been associated with the claims file. In July 2014, the Board remanded the appeal to the AOJ for additional development. On remand and in a May 2015, the AOJ granted entitlement to a TDIU from April 18, 2013. In January 2016 and April 2018, the Board again remanded the appeal to the AOJ for additional development. On remand, and in an October 2020 rating decision, the AOJ granted service connection for schizoaffective disorder, bipolar type with a 30 percent disability evaluation assigned effective February 25, 2008 and a 70 percent disability evaluation effective December 30, 2014 as well as granted special monthly compensation based on aid and attendance/housebound criteria, effective April 18, 2013. These matters are no longer on appeal before the Board. 1. Entitlement to a TDIU prior to April 18, 2013 The Veteran’s TDIU claim stems from a February 2008 claim. The Board notes that the Veteran is in receipt of a TDIU effective April 18, 2013. Thus, the Board must address whether the Veteran is entitled to a TDIU prior to April 18, 2013. Total disability ratings for compensation may be assigned, in circumstances 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 as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16 (a), the case should be submitted to the Director of Compensation and Pension Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16 (b). The central inquiry is “whether a Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran has multiple service-connected disabilities which are staged during the relevant appellate period prior to April 18, 2013. As noted, the Veteran has been found to be entitled to a TDIU from April 18, 2013. The Veteran is service connected for schizoaffective disorder, rated 30 percent from February 25, 2008 to December 29, 2014; diplopia due to strabismus surgery, rated noncompensable prior to June 1, 2010 and 40 percent from June 1, 2010 to April 18, 2013; tinnitus, rated 10 percent throughout the appellate period; and bilateral hearing loss, rated 30 percent from November 20, 2007 to September 1, 2017. During the appellate period the Veteran’s combined disability rating was rated 60 percent from February 2008 to May 31, 2010 and 70 percent from June 1, 2010 to April 17, 2013. The Board finds from June 1, 2010 the Veteran does meet the threshold schedular criteria for entitlement to a TDIU. Prior to June 1, 2010 the Veteran did not meet the schedular requirement for TDIU as he had a combined rating of 60 percent. None of the Veteran’s service-connected disabilities combined for a total of 70 percent or a single disability was 60 percent. The Board notes that the Veteran’s schizoaffective disorder and eye disorder are considered one disability under 38 C.F.R. § 4.25 as both were due to the Veteran’s in-service eye surgery. See October 2020 Rating Decision. However, prior to June 1, 2010 the Veteran’s eye disorder and schizoaffective disorder combined for a 30 percent disability. The evidence in the record establishes that the Veteran last worked in approximately April 2006. The Veteran worked in unskilled and semi-skilled labor. Notably, the Veteran worked as a spot welder, tire repairer, equipment operator, farm worker, security guard, and painter. The record indicates that the Veteran completed the ninth grade. Social Security Administration Records indicate that the Veteran became too disabled to work in January 1998 in part due to his service-connected schizophrenia. Pertinent to the appellate period, the Veteran underwent a VA psychiatric examination in March 2009. The Veteran reported issues of anhedonia, indecisiveness, loss of energy, irritability, concentration problems, and decreased libido. The examiner found the Veteran’s mental disorder symptoms were controlled by continuous medication and were not severe enough to interfere with occupational and social functioning. In October 2009, the Veteran underwent a VA contracted eye examination. The examiner found that the Veteran’s eye disabilities did not impact the Veteran’s ability to work. In June 2010, the Veteran underwent a VA eye examination. During the examination the Veteran reported the reason he was unemployed was due to his hearing, tinnitus, and because he was physically and emotional disabled through SSA. The examiner noted the effects of the Veteran’s eye disability on his daily activities was mild with difficulty with chores; shopping; exercise; sports; recreation; traveling; feeding; bathing; dressing; toileting; grooming; and driving. In July 2011, the Veteran underwent a contracted VA examination for his eye disabilities. The examiner found the effect of his condition on his usual occupation was impaired reading and writing due to the Veteran’s legally blind right eye. The Board finds from June 1, 2010, the Veteran is entitled to a TDIU. The Board finds that Veteran’s psychiatric disorder, hearing loss, tinnitus, and eye disorder combine together to make the Veteran unemployable particularly in light of his level of education and employment history. Notably, the Veteran’s psychiatric disorder affected his ability to concentrate; the Veteran’s vision difficulties impaired his ability to read and write and created difficulties with any daily activity. The Veteran competently and credibly described his inability to concentrate on the task at hand and see properly which are likely abilities without which he would be unable to be gainfully employed in the types of unskilled and semi-skilled work he had performed previously. Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that the Veteran is unable to perform the physical and mental acts required for substantially gainful employment due to his service-connected disabilities effective June 1, 2010, the date his service connected disabilities met the schedular rating and he was demonstrably unable to obtain and maintain substantially gainful employment. The Board finds that the criteria for entitlement to a TDIU are met from that date. In light of the foregoing, the Board finds that the evidence is in relative equipoise, and entitlement to a TDIU is therefore granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds further that prior June 1, 2010, an extraschedular TDIU is not warranted. The Board notes that the Veteran’s claim for a TDIU was referred to the Director of Compensation and Pension Services on the issue of extraschedular rating. In an August 2017 decision, the Director concluded that an extraschedular rating was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16 (b) purports to limit the Board’s scope of review of the Director’s decision and that the Board shall be the final authority on all benefits decisions under 38 U.S.C. § 7104 (a). As such, the Board will make its own determination regarding whether a TDIU on an extraschedular basis is warranted. The Board finds that the evidence in the record prior to June 1, 2010 does not indicate the Veteran’s service-connected disabilities caused the Veteran to be unemployable. Notably prior to June 1, 2010, the VA psychiatric examiner and the contracted eye examiner found little to no impact on the Veteran’s ability to work. The Veteran is unemployable due to a combination of his service-connected schizoaffective disorder, hearing loss, tinnitus, and eye disability effective from June 1, 2010. However, that is because the Veteran’s eye disabilities demonstrably increased in severity in June 1, 2010. The Board does note that the SSA records indicate that the Veteran was considered disabled for SSA purposes in part due to his service-connected psychiatric disorder. However, the evidence in the record does not indicate that the Veteran’s psychiatric disorder along with his other service-connected disabilities alone caused the Veteran to be unemployable prior to June 1, 2010. The Board does not doubt that the Veteran’s service-connected disabilities had an impact on his employability prior to June 1, 2010. However, the 60 percent combined schedular evaluation in effect during the relevant period contemplates commensurate industrial and functional impairment resulting from the Veteran’s service-connected disabilities. See 38 C.F.R. § 4.1. In reviewing the evidence of record, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply, and the claim must be denied for the period prior to June 1, 2010. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.