Citation Nr: 21027420 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 09-36 867 DATE: May 5, 2021 ORDER Entitlement to an earlier effective date of June 18, 2013 for total disability for individual unemployability is granted. FINDING OF FACT The Veteran is unable to maintain substantially gainful employment as a result of his service-connected disabilities as of June 18, 2013. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to October 6, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. This issue has a long and extensive procedural history. Most recently, this claim was remanded by the Board in January 2021 following an order of the United States Court of Appeals for Veterans Claims (Court) in July 2020, which granted a joint motion for remand (JMR) vacating the October 2019 Board decision and remanded the issue on appeal for additional development. Entitlement to an earlier effective date of June 18, 2013 for total disability for individual unemployability The Veteran applied for TDIU on June 1, 2014. In an April 2015 rating decision, the AOJ granted TIDU effective October 6, 2014, the date the Veteran met the schedular requirements. In January 2016, the Board remanded the issue of TDIU prior to October 6, 2014, based on the Veteran's statement that he has been unable to work due to his service-connected low back disability since 2010. The appeal period before the Board is from June 1, 2014, the date of the Veteran's claim, plus the one-year lookback period. 38 C.F.R. § 3.400(o)(2). The Board finds that the Veteran's service-connected disabilities have rendered him unable to work from June 18, 2013. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). According to 38 C.F.R. § 4.16(b), it is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director of the VA Compensation and Pension Service for such extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See Bowling v. Principi, 15 Vet. App. 1 (2001). The RO referred the matter in a February 2021 memorandum to the Director of the Compensation Service with a recommendation to grant the Veteran's claim for TDIU from August 1, 2013. The Director concluded that TDIU on an extraschedular basis was not warranted, noting that the Veteran's has a significant educational background. It was also noted that the Veteran did not apply for disability benefits from the Social Security Administration. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Prior to October 2014, the Veteran was service connected for his lumbar degenerative arthritis and DDD rated at 20 percent, lumbar radiculopathy of the left lower extremity rated at 10 percent, lumbar radiculopathy of the right lower extremity rated at 10 percent, and tinnitus rated at 10 percent. The Veteran's total disability rating prior to October 2014 was 40 percent. According to his VA Form 21-8940, the Veteran last worked full-time in January 2010 as a teacher. He continued to work part-time during 2013 as an administrative assistant and a caretaker. The Veteran reported he had a Ph.D. in religious education completed in 1983. The Veteran reported he was unable to finish his VA vocational rehabilitation due to his spinal injury and related depression. The Veteran was a teacher or college professor prior to the deterioration in his condition. The Veteran's employer at his last place of employment as a clerical assistant submitted a statement in November 2014. The employer reported that the Veteran participated in a program that provided temporary work for job seekers 55 or over. The Veteran reportedly worked 5 hours per day up to 18-20 hours per week. The Veteran's last day of employment was June 17, 2013. The Veteran's vocational rehabilitation records from 2013 indicated that the Veteran's service-connected tinnitus cause him to hear a constant bilateral ringing in his ears and requires him to avoid noise exposure and working in noisy environments. In November 2016, Dr. A.H. submitted a statement indicating he had not seen the Veteran for treatment in 85 months, but the Veteran was more likely than not unemployable at the time of his examination on October 7, 2009. Dr. A.H. indicated he could not comment further because he has not seen the Veteran since that time. In May 2017, a VA examiner reviewed the Veteran's records and provided an opinion about the Veteran's ability to work. The examiner indicated that between 2013 and 2014, it was clear that the situation regarding the Veteran's service-connected low back disability had worsened significantly. The examiner noted the Veteran's pain and radicular symptoms had increased during that period. The examiner concluded that the Veteran was precluded from usefully performing any type of work as of 2014. In a May 2014 letter, the Veteran reported he was unable to work due to his orthopedic condition including his spinal injury. Considering all the evidence, the Board finds that the Veteran has been unable to engage in substantial gainful employment since June 18, 2013, the day after he quit his most recent employment, at which point worsening occurred within the one-year lookback period. The Board finds that this date is consistent with the worsening noted in the May 2017 VA examination, the opinion of Dr. A.H., and the Veteran's own lay reports. Thus, the Veteran is entitled to a TDIU on an extraschedular basis as of June 18, 2013. ¬¬ L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.