Citation Nr: 21025926 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-42 828 DATE: April 29, 2021 ORDER From July 18, 2014, but not earlier, entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT From July 18, 2014, the Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW From July 18, 2014, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1971 to June 1972. In December 2020, the Board of Veterans’ Appeals (Board), in pertinent part, remanded the claim for to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU prior to December 10, 2019 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). VA regulations provide 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 the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 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 relevant appeal period has been limited to the period prior to December 10, 2019, because the Veteran has been awarded a TDIU effective from December 10, 2019. Thus, entitlement to a TDIU from December 10, 2019 is moot under the facts of this case. See Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008). The Veteran’s claim for increase was received in July 2014. See VA Form 21-8940 received July 18, 2014. The evidence indicates that the increase in severity of the Veteran’s service-connected disability that resulted in his unemployability occurred prior to the date of this claim. See 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998), 63 Fed. Reg. 56704 (1998). Thus, this is the earliest possible date for entitlement to a TDIU. The Veteran is service connected for grand mal epilepsy which is rated as 20 percent disabling from July 1, 1978; 10 percent disabling from November 1, 1984; 40 percent disabling from April 9, 2010 to December 9, 2019; and 60 percent from December 10, 2019. Thus, the Veteran’s combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from December 10, 2019, and as noted above, he has been awarded a TDIU from December 10, 2019. However, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) prior to December 10, 2019 as his sole service-connected disability was assigned a 40 percent rating. Nevertheless, notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service-connected disabilities. Such a TDIU claim may be submitted to the Director of the Compensation Service. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this case, the Board remanded the TDIU claim in December 2020 to the AOJ for referral to the Director of Compensation Service for a determination on whether the Veteran was entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). On his July 2014 application for increased compensation based on unemployability, the Veteran reported that his epilepsy and “[l]ower blindness” prevented him from securing substantially gainful employment since September 2011, when he last worked full-time as a painter. He left his last position because of his service-connected disability. He reported having a high school diploma and one year of college. An April 2010 VA Neurology appointment revealed that the Veteran’s seizure disorder caused increased periods of sudden lost attention. He was instructed not to drive for six months and to avoid activities such as going up ladders. A January 2011 VA examination note indicated that the Veteran had a memory impairment, often tripped due to bilateral eye defects, and had increased seizure frequency since 2009. The Veteran reported being let go by his employer as he was no longer able to use ladders due to his frequent seizures. VA treatment records including those dated before and within the one year period prior to the date of claim show that the Veteran has consistently reported that he stopped working in 2011 because of his seizure disorder. He noted that he was unable to drive to job locations or climb ladders due to his seizure disorder. During his December 2014 VA examination, the examiner noted that the Veteran was formerly employed as a painter. He used ladders as an essential part of his work. Given his seizure disorder, he was no longer able to safely perform his work. Further, his seizure disorder prevented him from driving to his job locations. The examiner found that he was no longer employable as a painter due to his service-connected seizure disorder. During his July 2019 Board hearing, the Veteran stated that he had only ever worked manual labor jobs and that his seizure disorder prevented him from driving to job locations, as well as setting up/climbing ladders. He had a GED and had not received any formal training. He noted that he stopped working in 2011 under the direction of a physician. Also, he noted that his service-connected seizure disability would make it difficult to work a sedentary job as he routinely lost concentration due to frequent mini seizures. In a January 2021 opinion, VBA’s Director of Compensation determined that a review of the evidentiary record, with the application of reasonable doubt, did not satisfactorily demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities prior to December 10, 2019, and therefore, a grant of extraschedular entitlement to TDIU was not warranted. The Board finds, however, that the preponderance of the evidence shows that the Veteran’s service-connected grand mal epilepsy rendered him unable to secure and follow a substantially gainful occupation from the date of his July 18, 2014 claim. The Board notes the inconsistencies of the date the Veteran last maintained full-time employment: however, the evidence of record notes that the Veteran successfully held full-time positions as a painter and stock clerk prior to January 2011. Also, the nature of the Veteran’s service-connected disability affects his memory and concentration. As such, the Board finds that the benefit of the doubt is in the Veteran’s favor as to the functional impact of his service-connected disability on his ability to maintain substantially gainful employment. As noted above, the record shows that the Veteran’s service-connected grand mal epilepsy precluded substantially gainful employment during the entire appeal period from the date of his claim. See January 2011 VA C & P Examination Note. From January 4, 2011, the Veteran reported, and the medical evidence corroborated, that he was unable to use a ladder, drive to job locations, and that he frequently lost concentration due to many mini seizures daily. The most probative evidence of record shows that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities since July 18, 2014, the date of his TDIU claim. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Based on the foregoing, the Board finds that a TDIU is warranted from July 14, 2014. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.