Citation Nr: 21026555 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-10 723 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from May 7, 2014 to July 30, 2014 is granted. Entitlement to a TDIU on an extraschedular basis from May 13, 2013 to May 6, 2014 is granted. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from May 7, 2014 to July 30, 2014, the evidence is at least equipoise regarding whether the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected disabilities 2. Resolving reasonable doubt in the Veteran's favor, from May 13, 2013 to May 6, 2014, the evidence is at least equipoise regarding whether the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for entitlement to a TDIU have been satisfied from May 7, 2014 to July 30, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to a TDIU on an extraschedular basis have been satisfied from May 13, 2013 to May 6, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1978 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On January 2019, the Board granted entitlement to a TDIU with an effective date of July 31, 2014, the date of his application. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the portion of the January 2019 Board decision that did not address whether entitlement to a TDIU was warranted prior to July 31, 2014. The Board remanded the claim for development in January 2020 to the Agency of Original Jurisdiction (AOJ), and it has since returned for further appellate review. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). In this situation, the Court indicated that the issue of entitlement to a TDIU was raised per Rice while the Veteran's increased rating claim for right shoulder was pending. Consistent with the JMR and after the necessary development have been completed, the Board will address entitlement to a TDIU prior to July 31, 2014. The Veteran seeks a TDIU prior to July 31, 2014. He asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the period from May 7, 2014, the Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected persistent depressive disorder, GSW of the right shoulder and neck, right neck GSW scars, and right upper back GSW scars. 38 C.F.R. § 4.16(a). For the period prior to May 7, 2014, the Veteran does not meet the threshold schedular disability percentage requirement for a TDIU consideration as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in the period prior to May 7, 2014, he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. The issue of entitlement to a TDIU based on extraschedular basis was referred by the AOJ to the Director, and the record reflects that the Director found that an extraschedular rating was not warranted in December 2020. The Court held in Ray that the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray, 31 Vet. App. at 3. See also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion and the Board has the jurisdictional authority to review the Director's extraschedular decisions). For the reasons that follow, the Board finds that a TDIU is warranted. Military personnel records reflect the Veteran's military occupation specialty (MOS)/rating was that of machine gunner. On his August 2014 application for unemployability he reported his service-connected GSW of the right shoulder and neck, and depression prevented him from following a substantially gainful occupation. The Veteran reported completing a high school education. He reported he last worked full-time in 1987 as a cashier. His employment record indicate he worked as a box maker from 1995 to 1997 and a cashier from 1997 to 2001. He became too disabled to work on December 2004. As the Veteran's service-connected GSW of the right shoulder and neck is rated under the 5399-8513 for diseases of the peripheral nerves, the evidence reviewed will be in accordance with the Veteran's rating. The Veteran presented for a VA examination in November 2013 to assess the current severity of his service-connected GSW of the right shoulder and neck, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran, who is right handed, reported his right arm getting weaker leading to problems with dropping things as he losses strength without any warning. He has decreased sensation from his shoulder to his fingertips. The Veteran's mother, who was present at the examination, reported that the Veteran's writing is no longer legible, he drops things easily like a coffee cup, and is unable to perform chores around the house because of decreased strength in the right upper extremity. The Veteran reported having difficulty lifting anything overhead. He has shoulder and neck pain when he moves his arms sideways, and has to take frequent breaks because of the pain. He reported being consistently fatigued especially in a shorter period of time with things he was able to do. The examiner reported the Veteran's symptoms as moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. During a sensory exam for light touch, there was decreased findings for the right shoulder, inner/outer forearm, and hand/fingers. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported that the Veteran worked 10 years ago at a grocery store but was unable to keep the job as he could not perform the lifting duties. He was evaluated by the state and VA but was unable to locate any further employment because of his injury to his right upper extremity. The Veteran presented for a VA Mental Health examination in July 2014 to assess the current severity of his service-connected persistent depressive disorder, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran's persistent depressive disorder results in occupational and social impairment with reduced reliability and productivity. During clinical interview the Veteran reported living with his mother who appeared to be his sole support system. He had about 2 to 3 friends but no one with whom he is very close. After leaving the service, the Veteran had various jobs until he went on Social Security Administration (SSA) disability. He endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; impaired abstract thinking; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner noted that the Veteran appeared to have little control over his mood, and is frequently angry and frustrated when unable to complete tasks and projects because of physical disability and chronic pain that limits him considerably. The Veteran reported that when something does not go well, he would destroy it and throw it away. He is constantly on edge, has difficulty sleeping, and frequently withdraws and isolates. He wishes it was him who was dead instead of his brother. In January 2015, the Veteran submitted a VA medical opinion by a licensed social worker G.B., who had provided mental health treatment to the Veteran since July 2011. In the opinion, social worker G.B. opined that the Veteran continues to have serious symptoms which affect his level of functioning and is currently unable to obtain or sustain employment. It was noted that the Veteran was motivated and committed to treating his mood but needs significant support to remain independent. The Veteran presented for a VA examination in February 2020 to assess the current severity of his service-connected GSW of the right shoulder and neck, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. When asked to describe the functional impact the Veteran's disability has on his ability to work form May 14, 2013 to July 31, 2014, the examiner reported that the Veteran is unable to lift overhead, lifting over shoulder level is limited to 10 pounds with the assistance of the left arm, and had limited gripping and grasping with the right upper extremity. The Veteran also had limited keyboarding and writing with the right hand, and limited pushing with the right upper extremity. The Veteran is limited to walking about 2 and half miles because of limited range of motion of the right upper extremity causing fatigue. The Veteran also had limited use of a push mower, and limited repetitive use of the right upper extremity including with tools such as screwdriver and hammer. The Veteran also presented for a VA examination in February 2020 for his service-connected scars. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported that the Veteran's service-connected scars did not impact his ability to work. Treatment records are not in significant conflict with findings during VA examination. For example, SSA medical records indicate that the Veteran has been disabled since March 2006 due to organic mental disorders and affective/mood disorders. Based on the foregoing, with regard to the appeal period from May 7, 2014 to July 30, 2014 when the Veteran met the schedular rating criteria for a TDIU, the Veteran's service-connected persistent depressive disorder and GSW of the right shoulder and neck would have prevented the Veteran from obtaining and maintaining substantial employment. In that regard, the Veteran's psychiatric symptoms such as his mood, being frequently angry and frustrated, being on edge, and tendency to withdraw and isolate would impact the Veteran's ability to maintain employment such as his previous job as a cashier, or even work in an office setting. The Board gives great probative weight to the January 2015 VA medical opinion by the Veteran's VA mental health social worker who had providing him treatment since 2011. In that opinion, the social worker noted that the Veteran has serious symptoms which affect his level of functioning leading to his inability to obtain or sustain employment. The Board has also taken into consideration the fact that the Veteran has been receiving SSA disability benefits since March 2006 partly due to his psychiatric disability. For the remaining period from May 13, 2013 to May 6, 2014, the Board acknowledges the negative determination by the Director in December 2020. The Board, however, is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Because the effective date of service connection for the Veteran's persistent depressive disorder is May 7, 2014, his symptoms from this disability cannot be considered as part of the TDIU analysis prior to that date. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). Based on the relevant evidence of record and resolving the benefit of the doubt in favor of the Veteran, the Board finds an extraschedular TDIU is warranted from May 13, 2013 to May 6, 2014 as there is sufficient evidence of record to determine that the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful occupation from that date. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment. In that regard, the symptoms of the Veteran's service-connected GSW of the right shoulder and neck include his right arm getting weaker and dropping things without warning. He has decreased strength and is unable to perform simple chores at home. He has shoulder and neck pain, frequently fatigued, and has difficulty lifting objects over his head. The examiner noted that the Veteran has moderate symptoms for constant pain, paresthesias and/or dysesthesias, and numbness of the right upper extremity. On these evidence, and in view of the fact that the Veteran is right handed, it is reasonable to conclude that the Veteran would have difficulty with labor related employments since the Veteran is unable to perform a simple task of holding objects for a certain time, has decreased strength, and has moderate symptoms of the right upper extremity such as numbness that would impact such employment. Regarding sedentary employment, symptoms of the Veteran's service-connected GSW of the right shoulder and neck would preclude employment. As noted in the February 2020 examination, his disability results in limited keyboarding and writing with the right hand, and limited pushing with the right upper extremity. These symptoms would most likely impact any office related jobs such as a customer service which would involve at least some form of typing or writing. Notably, after leaving his cashier job because of difficulty lifting objects, the Veteran sought assistance with finding employment from the state and VA, but it was determined that the Veteran could not find any further employment because of the injury to his right upper extremity. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. May 13, 2013 is the appropriate effective date for the TDIU because that is the date of his claim for an increased rating for his residuals of a GSW to the right shoulder. The Veteran has been unemployable since 2004, which is more than one year prior to his May 13, 2013 increased rating claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Resolving the benefit of the doubt in the Veteran's favor, the Board finds the evidence to be at least in relative equipoise as to whether the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment from May 13, 2013 to May 6, 2014, and from May 7, 2014 to July 30, 2014. Entitlement to a TDIU is granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.