Citation Nr: 21025580 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-20 962 DATE: April 28, 2021 ORDER The claim for entitlement to a total rating based on individual unemployability (TDIU) for the period from November 15, 2012, to February 15, 2013, based on extraschedular consideration under 38 C.F.R. § 4.16(b) (2020), is granted. FINDING OF FACT For the period from November 15, 2012, to February 15, 2013, it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW For the period from November 15, 2012, to February 15, 2013, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to November 1990. This matter came before the Board of Veterans Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a July 2018 hearing. The transcript of the hearing is of record. July 2018 and February 2020 Board decisions remanded the issues on appeal for further development. An October 2018 rating decision granted entitlement to TDIU effective July 9, 2018. A June 2020 rating decision then granted an earlier effective date of February 15, 2018 for the grant of entitlement to TDIU. An August 2020 Board decision found that this constituted a partial grant of benefits sought on appeal under Harper v. Wilkie, 30 Vet. App. 356 (2018) as the issue was raised by the record as part of the underlying right knee increased rating appeal. The Board therefore found that the issue remained on appeal and remanded the issue for issuance of a Supplemental Statement of the Case (SSOC). The record shows that an SSOC was issued in September 2020. In a January 2021 Board decision, the claim of entitlement to a TDIU for the period from March 1, 2014, to February 15, 2018, aside from periods when a 100 percent rating was already in effect, was granted. The Board noted that a 100 percent rating had already been assigned for the period from February 15, 2013, to March 1, 2014. For the period from November 15, 2012 to February 15, 2013, the Veteran’s combined rating was 60 percent, and the schedular threshold was therefore not met. The current claim of entitlement to a TDIU for the period from November 15, 2012, to February 15, 2013 was remanded for referral to the Director, Compensation Service, for an extraschedular determination as to whether the Veteran was entitled to a TDIU for the period from November 15, 2012, to February 15, 2013, in accordance with the provisions of 38 C.F.R. § 4.16(b) (2020). An opinion from the Executive Director of the Compensation Service was obtained in January 2021, and the claim has now been returned to the Board for further appellate consideration. The claim for entitlement to a TDIU for the period from November 15, 2012, to February 15, 2013, based on extraschedular consideration under 38 C.F.R. § 4.16(b) (2020). It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2020). 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 (2020). “Substantially gainful” employment is employment that is “ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a) (2020); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a) (2020). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a) (2020). The sole fact that a claimant 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran submitted an August 2018 VA Form 21-8940, reporting that he last worked full time in April 2011. He reported that he completed 4 years of college and had past employment as a service manager and as a mechanic. He stated that his loss of limb, lower left side, was not the reason that he was unemployable, as he could walk fine. He stated that his back, radiculopathy, and right knee disabilities caused pain and weakness that made him unable to work. He specifically reported that he was on pain medication regimen of morphine and oxycodone that prevented him from working, and that the drugs were only for his service-connected disabilities. At the July 2018 Board hearing, the Veteran reported that he stopped working due to problems with his back, left shoulder and right knee. He stated that he was unable to go from a sitting to a standing position without help due to pain and weakness in his knee. He also stated that he could not sit, and he had been put in an office position before stopping employment and was unable to handle sitting in a chair. The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and problems sitting and changing positions. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Prior to March 2014, the Veteran was service connected for left shoulder recurrent dislocation evaluated at 20 percent disabling from November 15, 1990 and 100 percent from February 15, 2013; lumbosacral strain with intervertebral disc syndrome evaluated at 20 percent disabling from November 15, 1990 and 40 percent disabling from March 30, 1992; right knee partial medical meniscectomy with degenerative joint disease evaluated at 0 percent disabling from November 15, 1990 and 10 percent disabling from November 15, 2012; hypertension percent disabling from November 15, 1990; and removal of the gall bladder percent disabling from November 15, 1990. The combined overall evaluation was 40 percent from November 15, 1990, 50 percent from March 30, 1992, 60 percent from November 15, 2012, and 100 percent from February 15, 2013. The Social Security Administration (SSA) found that the Veteran was totally disabled as of May 9, 2011. With regard to an extraschedular rating, if a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a) (2020), such as the case here, rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration 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) (2020); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19 (2020); see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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. 38 C.F.R. § 4.16(b) (2020). As the Veteran did not meet the schedular percentage threshold for the period from November 15, 2012, to February 13, 2013, the RO referred the Veteran’s TDIU claim to the Director of the Compensation Service for extraschedular consideration. After reviewing the evidence of record, in a January 2021 signed Memorandum, the Director of Compensation Services indicated that for the period in question, a review of the file showed that the Veteran last worked as a mechanic, but his employer provide a concession by transferring him to inside sales. It was noted that SSA benefits had been established. Her review of the medical evidence showed that, for the period in question, the Veteran was unable to sit or stand for more than 30 minutes at a time and could walk for one block. Additionally, he could not lift more than 20 pounds or raise his arms above his head. While it was conceded that the Veteran’s service-connected conditions did cause functional limitation, the preponderance of the evidence did not show that he was unable to obtain or maintain gainful employment due to his service-connected conditions for the period in question. The Board has jurisdiction to review the entirety of the Director’s decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Although the Board is required to obtain the Compensation Service Director’s decision before awarding extraschedular TDIU benefits in the first instance, see Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b) (2020)). VA records reflect that the Veteran was noted upon X-rays in June 2012 and October 2012 to have marked intervertebral disk height loss at L3-S1 with findings compatible with diskectomy at L4-5. Intervertebral disk desiccation was seen at L5-S1. In August 2012, the Veteran was seen for left shoulder complaints. His previous total shoulder replacement (TSR) surgery in 2005 was noted. Now, he complained of increased pain, loss of motion, and severe loss of strength. The examiner’s impression was of left prosthesis superior impingement. October 2012 X-ray of the right knee showed a complete tear of the anterior cruciate ligament. There was a suggestion of a subacute bone contusion in the articular aspect of the proximal tibia, and complete loss of articular cartilage in the medical compartment with secondary maceration of the medial meniscus. There was moderate size joint effusion. In November 2012, the Veteran was again seen for his left shoulder. Again, he reported an increase in pain. Computerized arthrogram showed a tendon tear and superior migration of the prosthesis. In January 2013, it was noted that he was unable to lift any weight. He felt pain at all times. He was seen in late 2013 for preoperative evaluation as he was planned for left shoulder total reverse arthroplasty. The Veteran was admitted to the hospital on February 7, 2013, and the left shoulder surgery was ultimately performed on February 15, 2013. Given the above, the Board finds that at the very least, it is at least as likely as not the Veteran’s service-connected back, knee, and left shoulder symptoms precluded his ability to secure or follow a substantially gainful occupation for the period in question from November 15, 2012, to February 15, 2013. Indeed, as above, the Veteran’s disabilities have rendered him unable to lift any weight, be in constant pain, severe loss of strength and he was unable to stand or sit for more than 20, minutes or walk for more than a block. The Board notes the Director of Compensation Service did not specifically address the severity of the Veteran’s back, shoulder, and knee X-rays, or specifically comment on the left shoulder symptoms prior to the February 2013 surgery. The Board finds that the Veteran’s service connected disabilities cause functional impairment which interfere with his ability to secure and maintain substantially gainful employment. As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that it is concluded that it is at least as likely as not the Veteran is entitled to a TDIU on an extraschedular basis due to service-connected disorders for the period in question (November 15, 2012, to February 15, 2013), and the claim is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.