Citation Nr: 21025086 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 20-10 426 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he is rendered unemployable due to his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an extraschedular TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1952 to May 1955. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board initially remanded this issue in June 2020. In December 2020, the Board also remanded the claim to the Executive Director of Compensation Service for extraschedular consideration. The Executive Director of Compensation Service denied the Veteran’s TDIU claim on an extraschedular basis in January 2021. The Board notes that the determination made by the Executive Director is not evidence, but is rather akin to a de facto agency of original jurisdiction (AOJ) decision—and that 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). The United States Court of Appeals for Veterans Claims (Court) reaffirmed that the Board has jurisdiction to review the entirety of the Executive Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Extraschedular TDIU The Veteran contends that he is unable to secure and maintain a substantially gainful occupation and is thus entitled to a TDIU based on his service-connected disabilities. A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In accordance with 38 C.F.R. § 4.16(b), the assignment of a TDIU on an extraschedular basis may be referred to, and considered by, the Executive Director, Compensation Service, when the appropriate circumstances arise, to determine whether a veteran is unemployable by reason of service-connected disabilities but who fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Here, service connection has been granted for degenerative arthritis of the lumbar spine (20%); degenerative arthritis of the left knee (10%); left hand degeneration osteoarthritis, status post shot gun wound (10%); and right knee strain (10%). The Veteran’s combined disability rating is 40 percent. Thus, pursuant to 38 C.F.R. § 4.16(a), he has not met the minimum percentage requirements for a TDIU. Notwithstanding, the Board must consider whether the Veteran is entitled to a TDIU on an extraschedular basis. As previously stated with regard to an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards in 38 C.F.R. § 4.16(a), rating boards should refer to the Executive Director of Compensation Service for extraschedular consideration in all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The record reveals that the Veteran has not worked since 1999. See August 2018 VA Form 21-8940. The Veteran’s case was referred to the Executive Director of Compensation Service for extraschedular consideration in December 2020. In January 2021, after reviewing the evidence, the Executive Director denied a TDIU on an extraschedular basis. Notably, the Director opined that, while the Veteran has limitations caused by service-connected disabilities, the cumulative evidence does not support a finding that any service-connected condition, alone or in conjunction, preclude all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. However, as previously explained, the Executive Director of Compensation Service’s negative opinion is not binding on the Board because it is a decision of fact. Thus, the Board acknowledges this adverse decision, but notes that it will be reviewed in light of the total evidence of record, as opposed to using it as a sole determining factor in making a final decision on the Veteran’s claim. On his Application For Increased Compensation Based On Unemployability Form (VA Form 21-8940), received in August 2018, the Veteran indicated that he last worked in 1999. He noted that his service-connected disabilities prevent him from securing or maintaining any employment and that he worked for the same employer in two different roles, from 1968 to 1999. Specifically, the Veteran was employed as a machine operator and a receiving dock clerk. He completed four years of high school, with no college education completed. On a Request For Employment Information Form, obtained in October 2018, the Veteran’s former employer indicated that the Veteran was employed from December 1968 to November 1999, but lost 21 days of work during the last 12 months with the company due to his disabilities. The employer noted retirement as the reason for termination of employment. In April 2018, the Veteran was afforded VA examinations for his service-connected disabilities. The examiner noted that each of the Veteran’s conditions impacts his ability to work. For the back, knee, and lower leg conditions, the examiner stated that the Veteran is limited in walking and standing for prolonged periods. The examiner also noted that the Veteran’s hand disability limits his grasping of objects for prolonged time periods. In February 2019, VA obtained a medical opinion from Dr. D.B.M., a board-certified orthopedic surgeon, who indicated that he interviewed the Veteran and reviewed the Veteran’s claims file. Dr. D.B.M. stated that the Veteran’s retirement was secondary to his service-connected back and left-hand conditions. He explained that the Veteran worked in the receiving department of a company, where he was required to load and unload semi-trucks that were full of equipment. He stated that the Veteran also had to crawl into tight spaces when driving a forklift to help unload the semi-trucks, and that the Veteran was required to handle multiple objects for most of the day, which aggravated his left-hand symptoms. The surgeon noted that the Veteran missed 21 days of work during the last 12 months of employment because of his left hand and thoracolumbar conditions and that the physical limitations of his back prevented him from continuing to engage in even strictly sedentary work, which would require him to sit for a minimum of six hours out of a normal eight-hour day. Dr. D.B.M. explained that it is well known among orthopedic surgeons that individuals with significant lumbar symptoms simply do not tolerate prolonged sitting. In August 2020, the Veteran submitted a vocational assessment from F.F., a vocational rehabilitation consultant and certified rehabilitation counselor. The consultant opined that the service-connected lumbar spine degenerative arthritis, left hand degeneration osteoarthritis, left knee degenerative arthritis, and right knee strain at least as likely as not rendered the Veteran unable to secure and follow substantially gainful employment in any occupation regardless of skill or exertional level, since at least 1999. In making this decision, the counselor interviewed the Veteran and reviewed his entire VA claims file. The vocational consultant opined that the Veteran would be unable to satisfy work standards of pace, productivity, and reliability, due to his service-connected orthopedic conditions—and that his physical discomfort, weakness, numbness, and compromised functioning because of his service-connected conditions result in his inability to sit, stand, walk, or remain on task for prolonged periods. As such, the Veteran is more likely than not require the frequent ability to take unscheduled breaks, alter his positions, lie down, or recline with his lower extremities elevated in an attempt to alleviate discomfort, numbness, weakness, and fatigue. The consultant explained that unscheduled breaks to rest or alter position would render the Veteran off-task, adversely impacting his productivity, which would not be tolerated in the competitive workforce. He concluded that the Veteran’s concentration impairments and his inability to remain on-task or complete a normal work schedule due to his service-connected disabilities and fatigue would at least as likely as not render him unproductive and unreliable in any work capacity. The Board has carefully considered statements from examiners, the Veteran, and the vocational consultant regarding the effects of his service-connected disabilities on his employability and finds that the positive and negative evidence regarding his TDIU claim is in relative equipoise. The ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, with the resolution of reasonable doubt in the Veteran’s favor, the Board finds that his service-connected disabilities prevent him from securing or following a substantially gainful occupation given his work history, his education, and the collective impact his service-connected degenerative arthritis of the lumbar spine; degenerative arthritis of the left knee; left hand degeneration osteoarthritis, status post shot gun wound; and right knee strain would have on obtaining and maintaining physically demanding employment, including in his past work as a machine operator and a receiving dock clerk. Furthermore, both the orthopedic surgeon and vocational consultant concluded that the Veteran’s service-connected disabilities would prevent him from doing even sedentary work. As such, the totality of the evidence supports a finding that the Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. Accordingly, the claim for a TDIU on an extraschedular basis is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.