Citation Nr: 21027363 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-21 731 DATE: May 5, 2021 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) from December 29, 2011 to April 30, 2012 is denied. TDIU is granted on an extraschedular basis effective May 1, 2012. FINDINGS OF FACTS 1. The Veteran was incarcerated until April 30, 2012. 2. From May 2, 2012, the evidence is in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to May 1, 2012, the assignment of a TDIU is denied as a matter of law. 38 U.S.C. § 5313 (c); 38 C.F.R. § 3.341 (b). 2. The criteria for an extra-schedular TDIU are met effective May 1, 2012. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to July 1967. In a December 2015 decision, the Board of Veterans' Appeals (Board) found that the claim for a TDIU is part and parcel of the claims for increased rating for service-connected bronchiectasis and right bundle branch block, which were issues appealed from an August 2010 rating decision. The Veteran filed a Notice of Disagreement (NOD) in June 2011, which resulted in a July 2013 Statement of the Case (SOC). Subsequently, the Veteran filed a substantive appeal in July 2013. The TDIU claim was remanded by the Board in December 2015, September 2018, and September 2020. In January 2021, the Veteran's representative filed a brief asking the claim to remain open pending adjudication of the left eye blindness and right eye condition claims. Review of the record shows that the Board granted service connection for right and left eye disabilities in September 2018. The grant was implemented by way of an April 2019 rating decision. There was no NOD filed appealing that rating decision. Thus, there is no appeal currently pending before the Board regarding these claims. Therefore, the Board need not delay adjudication of the claim. Applicable Law The Veteran contends that he is precluded from employment due to his service-connected disabilities. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude a veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service (Director), for extraschedular consideration. 38 C.F.R. § 4.16(b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it 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); 38 C.F.R. § 4.16 (b)). The Director's decision is not evidence, but, rather, the de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The Board's determination to refer a case for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding that does not bind the Board or require it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether a veteran can "secure and follow" substantially gainful employment, attention must be given to a veteran's occupational history, education, skills, and training, as well as a veteran's physical and mental ability to perform occupational activities. However, consideration may not be given to a veteran's age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. The mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Id. 1. Entitlement to a TDIU is denied prior to May 1, 2012 is denied. In this case, on December 29, 2011, the Veteran filed an Application for Increased Compensation Based on Unemployability while he was incarcerated. The record indicates that the Veteran was incarcerated from May 24, 2001 to May 1, 2012 for a felony. See June 2012 Prison/Convict Information. Under 38 C.F.R. § 3.341 (b), a rating for TDIU which would first become effective while a veteran is incarcerated for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313 (c). Therefore, the Board cannot grant TDIU benefit for the appeal period prior to May 1, 2012 because the Veteran was incarcerated for a felony. 2. Entitlement to a TDIU is granted effective May 1, 2012 As to the appeal period after May 1, 2012, the Board concludes that the preponderance of the evidence of record is in equipoise as to whether the Veteran's service-connected disabilities were of such severity as to preclude employment. To that end, the Veteran's service-connected disabilities during the relevant period were as follows; bilateral eye disability rated as 40 percent; bronchiectasis rated as 10 percent, right bundle branch block rated as 10 percent, and hiatal hernia rated as 10 percent. His combined disability rating was 60 percent. Without a single disability rated at least 60 percent disabling, or a combined disability rating of at least 70 percent, the Veteran's service-connected disabilities do not meet the threshold for a schedular TDIU consideration. Notwithstanding, the question of whether the Veteran's service-connected disabilities preclude employment remains before the Board as TDIU may be warranted on an extraschedular basis. The Veteran has a Bachelor of Science degree, Master degree in nursing and worked as registered nurse for 10 years. See March 2017 VA form 21-8940. He also reported working as U.S. postmaster for multiple years. See May 2012 HCHV Outreach Psychosocial Note. He has additional training in web design and data entry. See December 2011 VA form 21-8940. The Veteran reported that he became too disabled to work in December 2008. The Veteran contends that he is legally blind. See October 2012 Correspondence; see also February 2017 correspondence. He further asserts that he is unemployable due to his balance difficulties and loss of field vision. See December 2011 Statement in Support of Claim. The Veteran reports that he reaches for objects that are not there and bumps into people when walking due to his service-connected bilateral eye disability. During an April 2013 VA examination, the examiner acknowledged an optometry note from July 2012 that found that the Veteran would not be qualified for a Florida driver's license because of his vision. That examiner, however, concluded that the Veteran's condition would not impact his ability to work. During a February 2017 VA examination, the examiner found that the Veteran's condition causes functional impairment that impacts his occupation to the extent he has "poor depth perception. He bumps into people and objects." Likewise, a December 2020 Disability Benefit Questionnaires (DBQ) reflects that the Veteran has loss of depth perception in both eyes. The examiner noted that the Veteran cannot judge distances of objects. As such, he has trouble walking on sidewalks, driving, or reaching for objects. The examiner also found difficulty with near, far, and computer vision. In May 2013, the Veteran underwent VA examinations for his heart and respiratory disabilities. During the heart examination, the Veteran reported that his heart "skipped a beat" occasionally. His interview based METs level reflected dyspnea and it was consistent with performing activities such as walking one flight of stairs, golfing without using a cart, mowing the lawn, and heavy yard work. As to his bronchiectasis, the Veteran reported occasional productive cough, shortness of breath after walking on treadmill for 8 minutes or after climbing flight of stairs. Both examiners concluded that the Veteran's service-connected right bundle branch block and bronchiectasis do not cause functional impact on the Veteran's ability to work. February 2017 and a July 2017 VA examinations found that the Veteran's hiatal hernia does not cause functional loss. The Board recognizes that the claim was referred to the Director for consideration on an extraschedular basis and the Director denied such benefit in January 2018 and October 2020. As noted above, an extraschedular referral decision does not require the Board to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). Nor is the Director's opinion binding on the Board. The Director's opinions recited the Veteran's education and work history and effects of service-connected disabilities but concluded that he is not prevented from following or securing substantially gainful employment. However, the opinions do not explain how the Veteran's education and training enable him to work when he has no depth perception, cannot drive, has trouble grasping or walking without stumbling or bumping into people or objects, has poor near and far vision, and poor vision for computer use. The Veteran's training and experience as a nurse is impressive and he is clearly an intelligent and academically accomplished individual. However, nursing requires movement around people and fine motor manipulation skills. If the Veteran cannot successfully navigate a sidewalk or grasp objects reliably, the Board has difficulty conceiving of how he can work as a nurse. Similarly, his training in graphic design and data entry prepared him for work using computers. However, his disability results in poor vision for computer screens, so it is unclear to the Board how he could use this training in an employment setting. While the Veteran has demonstrated the ability to learn new skills and acquired advanced degrees in the past, the combination of poor computer vision with poor ambulation and grasping of objects would make learning new skills quite difficult. Most jobs that allow sedentary work to avoid ambulating require use of some sort of computer screen. The Veteran is precluded from both due to his total loss of vision in one eye and resulting total loss of depth perception. Based on the foregoing, the Board finds that the specific nature of the Veteran's visual disability, examined in the context of his specific job training, education, and experience, places the evidence at least in equipoise as to whether he is prevented from securing and following substantially gainful employment. The Board resolves doubt in his favor and grants TDIU effective May 1, 2012. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.