Citation Nr: 21025973 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-17 818 DATE: April 29, 2021 ORDER A total rating based on individual unemployability due to service-connected disabilities (TDIU) from September 30, 2011, on an extraschedular basis is granted. FINDING OF FACT From September 30, 2011, the combination of the Veteran’s service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment which he had the education, skills, and training to perform. CONCLUSION OF LAW The criteria for a TDIU from September 30, 2011, on an extraschedular basis have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1965 to July 1967. Entitlement to TDIU was previously before the Board in February 2020. TDIU was granted, effective July 25, 2013, and entitlement to TDIU prior to that date was remanded for extraschedular consideration. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claim. 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 conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran 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). TDIU The Veteran submitted a claim for TDIU in November 2008 which was denied in a September 2009 rating decision. The Veteran appealed in December 2009 and a Statement of the Case was issued in October 2010. He did not submit a Substantive Appeal and the decision became final. March 2010 service connection claims for depressive disorder and disequilibrium were granted in a September 2010 rating decision. The Veteran did not appeal the awards. As such, that decision became final. On September 30, 2011, the Veteran submitted an informal claim to TDIU which was denied in an October 2016 rating decision. As noted above, the Veteran appealed and TDIU was granted, effective July 25, 2013. Accordingly, the Board will consider entitlement to TDIU from September 30, 2011, to July 25, 2013. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. 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 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. Prior to July 25, 2013, the Veteran’s service-connected disabilities included bilateral hearing loss at 40 percent; depressive disorder at 30 percent; tinnitus at 10 percent; and disequilibrium at a noncompensable rate, for a combined evaluation of 60 percent. As such, prior to July 25, 2013, the schedular threshold for TDIU was not met. (As of July 25, 2013, the Veteran’s service-connected disabilities met the schedular threshold). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, the February 2020 Board remand requested the Agency of Original Jurisdiction (AOJ) refer the Veteran’s claim to the Director for consideration of whether a TDIU was warranted on an extraschedular basis. Such was accomplished and an Advisory Opinion was issued by the Director in October 2020. The Veteran’s educational background includes a high school education. Prior to military service, he worked at a grocery store. During service, his military occupational specialty was ordnance supply and part specialist. He reported that his duties included working in a motor pool and as a clerk in supply. Post-service, he worked as a carpenter and in construction in family-owned companies. His family construction company confirmed that he worked there from June 1994 to June 2008 and that he left employment there after taking early Social Security Administration (SSA) benefits due to his health. The Veteran’s brother stated that he was unable to find employment elsewhere and was ultimately hired by family who could make accommodations for his disabilities. As such, from an economic perspective, the Veteran has the education, skills, work history, and training to perform work in carpentry and construction and as a supply clerk. Effective September 21, 2007, SSA disability benefits were granted based on a primary disability of an organic mental disorder and a secondary disability of disorders of the back. At an SSA evaluation, the Veteran reported that he could not use construction equipment without getting dizzy and hurting others. He also described problems doing tasks requiring processing thoughts to complete. A psychiatric evaluator noted that memory problems were evident, he was depressed, he was fairly dependent on his mother and wife for activities of daily living, and he tended to isolate himself. His main work history was with family members who tolerated his interpersonal difficulties. In a May 2008 statement, the Veteran listed numerous falls and other injuries on the job. In his November 2008 TDIU application, he stated that his hearing loss had destroyed his ability to communicate and to be employable. It affected all areas of his life, especially learning and mental and emotional functioning. A September 2009 VA examiner determined that the Veteran was not considered unemployable based on his hearing loss alone as the examiner did not in general consider hearing loss as a disability which renders individuals unemployable as many occupations do not rely significantly upon hearing and may be performed successfully despite hearing loss, especially physical or trade positions. An August 2010 VA examiner concluded that the Veteran’s depressive disorder resulted in reduced reliability and productivity. His irritability might interfere with his relationships with supervisors and coworkers and his sleep deficits and concentration problems would also likely interfere with work productivity. At an examination regarding his service-connected disequilibrium, the Veteran reported that he experienced episodic dizziness 3 to 4 times per week, lasting several minutes. The Veteran’s brother and employer stated in March 2010 that when he was unable to find employment, he was hired by the family business. The Veteran could not hear coworkers and clients which caused stress and an inability to cope well with the public. He was often interrupted in his work process due to tinnitus and had problems with concentration, memory, and productivity. This caused a difficult atmosphere with work crews due to his depression, anxiety, and irritability. When the brother’s son joined the family company, he was asked to always accompany the Veteran due to safety concerns with his working independently. The Veteran could not hear warnings and would often fall from roofs, scaffolding, or in excavation holes. At one point, the Veteran reportedly missed two and a half months of work due to accidents because he could not hear warnings. Eventually the cost of damages to equipment and hospital visits and the lost work time caused his brother to no longer be able to keep him as an employee. In a March 2011 VA treatment record, the Veteran reported falling on the job due to dizziness. He noted that he would not have been able to support his family if his brother had not offered him a job. A VA clinician stated in April 2011 that it was expected that the Veteran’s depressive symptoms were seriously impacting all areas of functioning, including social and occupational. The Veteran’s wife noted that he was no longer able to work due to his hearing loss and tinnitus. He had been performing odd jobs for a family business but was unable to hear what people said to him. Thus, from a non-economic perspective, his service-connected disabilities caused difficulties hearing, concentrating, getting along with coworkers and the public, and disequilibrium lead to falls and other accidents and his eventual dismissal. The Director issued an Advisory Opinion in October 2020 which determined that the Veteran’s service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment prior to July 25, 2013, as the Veteran was capable of performing sedentary employment. An extraschedular TDIU from September 30, 2011, is granted. Based on the foregoing, the Board finds that an extraschedular TDIU prior to July 25, 2013, is warranted. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. The evidence indicated that the Veteran did not have difficulty with each of the physical ability factors, per se, but that he suffered from disequilibrium and severe hearing loss which affected his ability to work safely with carpentry and construction equipment. Further, his brother has competently and credibly described the Veteran’s inability to perform the activities of his position safely and independently. Multiple falls and injuries occurred which became a liability for the company. As such, it is likely that any employment involving the operation of dangerous equipment or work at great heights would be precluded, specifically including carpentry and construction work for which the Veteran has a significant work history. As noted by the VA examiner, it is unlikely that his disequilibrium and hearing loss would greatly limit his ability to perform sedentary work, though his difficulty concentrating and frequent moments of dizziness would affect productivity. In the Veteran’s specific case, sedentary work for which he has the necessary skills and training only includes the work of a supply clerk. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. at 58. The Veteran and his brother have competently and credibly described his difficulties with concentration, handling stress, getting along with coworkers, and demonstrating reliability and productivity. VA clinicians have described the impairment caused by his depressive disorder and difficulty concentrating due to tinnitus. It is likely that any employment requiring significant concentration and attention to detail and frequent interaction with others would be precluded by the Veteran’s service-connected disabilities, specifically to include carpentry and construction work. Given the Veteran’s difficulty with concentration, sedentary work requiring precision would also likely be precluded. Given the totality of the Veteran’s service-connected impairments, the Board finds that it is unlikely that he could obtain or maintain substantially gainful employment for which he has the education, skills, work history, and training to perform. It appears as though he would not be able to engage in carpentry or construction work safely given his severe hearing loss, disequilibrium, and inability to work with others. Indeed, it appears as though his past employment with a family-owned company was a protected environment which provided accommodations for his limitations that an average employer would not extend. Regarding sedentary work, as noted above, the Veteran has training and history as a supply clerk. Although the Director found that his disabilities would not preclude sedentary employment, the Board finds that the combination of his physical and mental service-connected disabilities would likely limit his ability to reliably engage in substantially gainful employment in the specific type of sedentary employment for which the Veteran is qualified, due to his poor hearing, difficulties concentrating, and psychiatric impairments. Accordingly, in light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds that the combination of the Veteran’s service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment prior to July 25, 2013. Therefore, an extraschedular TDIU is warranted as of the date of claim, September 30, 2011. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.