Citation Nr: 21028312 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-18 460A DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 6, 2017 is denied. Entitlement to a TDIU from January 6, 2017 onward is granted. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment for the period on appeal prior to January 6, 2017. 2. The evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment from January 6, 2017 onward. CONCLUSIONS OF LAW 1. The criteria for a TDIU are not met for the period on appeal prior to January 6, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 2. The criteria for a TDIU are met for the period from January 6, 2017 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from April 1977 to November 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to TDIU. The Veteran's notice of disagreement (NOD) was received in November 2010. The RO issued the statement of the case (SOC) in May 2011, and the Veteran's VA Form 9, substantive appeal was received in July 2011. The Veteran was scheduled to appear for a hearing before a Veterans Law Judge at the VA Regional Office (RO) in July 2014, but he failed to appear for that hearing and did not offer explanation or request a rescheduled hearing. Therefore, the Veteran's hearing request is considered withdrawn. In October 2014, May 2016, July 2017, and April 2020 the Board remanded the case to the RO for further development and adjudicative action. The Board notes that in correspondence dated in August 2016 and October 2019, VA provided the Veteran with a blank VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and informed him that if he believes he qualifies for a TDIU he should complete, sign and return the form. As of this date, no evident response to either of the letters has been received. 1. Entitlement to a TDIU from January 6, 2017. 2. Entitlement to a TDIU prior to January 6, 2017. A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such 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). As a TDIU claim is a claim for an increased rating, the Board will generally review evidence from the date of the Veteran's increased rating claim and during the one year "look back period" preceding the submission of the claim. See 38U.S.C. §5110(b); 38C.F.R. §3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The appeal period before the Board is from September 1, 2009, the date VA received the claim for an increased rating, plus the one year look back period. In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, for the entire appeal period, the Veteran did not meet the schedular criteria for a TDIU. While he had a combined disability rating of 70 percent from September 1, 2009, the date of his claim, no singular disability has been evaluated as at least 40 percent throughout the entire appeal period. Throughout the appeal period, the Veteran has been rated for fracture of odontoid process of C1 with fusion of C1,C2, and C3 (30% from 1/12/2009); scar of the head, face, or neck (30% from 9/1/2009); temporomandibular articulation, limitation of motion (20% from 1/12/2009); fracture of right femur (10% from 1/12/2009); scar, donor site, left hip (10% from 1/12/2009); sciatic nerve, paralysis of left lower extremity associated with scar, donor site, left hip (10% from 2/26/2015); and fracture of the left mandible ramus with a noncompensable rating. A rating that does not include one disability rated at 60 percent or a combined rating of 70 percent with at least one disability rated at 40 percent is not sufficient under the rating criteria. The Veteran lacks a single disability rated at 40 percent and accordingly a schedular TDIU rating must be denied. That notwithstanding, in all cases where there is a reasonable possibility of unemployability due to service-connected disabilities, but the Veteran does not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), the Board will refer the case to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In response to the April 2020 Board remand, the RO referred the case to the Director of Compensation Service for extraschedular consideration in October 2020. As this step has been completed, the Board may address whether an extraschedular TDIU is warranted. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Director of Compensation Service issued a December 2020 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, although the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). As the Director has addressed extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b) in the first instance, the Board may address the entirety of the appeal period with regards to whether a TDIU is warranted at this time. After reviewing the evidence of record, the Board finds that the evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment from January 6, 2017. In this regard, the evidence of record reflects that the Veteran earned a high school diploma, completed two years of college in 2005 and completed a plumbers and pipefitters apprenticeship in 1984. Prior to January 6, 2017, the Veteran reported primary employment working as a pipefitter in construction. See Social Security Administration (SSA) Form 831 Disability Determination. The Veteran reported that he was employed full time and earning no less than $25 an hour throughout the entire appeal period prior to January 6, 2017 except for the period from February 2016 to July 2016. Notably, the Veteran reported that his service-connected neck disability did not cause him to make changes in his work activity until December 2016. See id. Of record are documents from the Social Security Administration (SSA) stating that the Veteran was disabled as of January 6, 2017, due to disorders of the back and neck. While SSA findings are not binding on VA, they are relevant and probative in this case. These records show that the Veteran was unemployed as of January 6, 2017 due to back and neck conditions. The SSA records indicate that the Veteran previously worked in construction but is now unable to sustain such work because he experiences worsening symptoms which include spasms in his neck and back, along with frequent headaches. A February 2015 VA examination report indicates that, along with limitations in physical labor, the Veteran would also be limited in occupations that would not allow for proper posture while sitting and he would be limited in sitting no more than 30 minutes without position change. Following VA examinations in September 2017, an opinion was obtained concerning limitations on the Veteran's employability due to his service-connected neck, left hip, and right leg disabilities. The examiner stated that, due to his conditions, he could no longer work in construction as a pipe-fitter, and would have difficulty engaging in any job that would require physical labor or prolonged standing or walking because he has difficulty standing more than 30 minutes and walking more than one block. The examiner further noted that he has difficulty bending and lifting any objects due to his left hip disability. The examiner noted that the Veteran may be able to work at a desk answering phone calls, but would require frequent rest breaks. The Board acknowledges the VA examiner's opinion that the Veteran may be able to work at a desk answering phone calls, as well as the Director's opinion, however, in light of the aforementioned positive evidence of record, to specifically include the July 2017 SSA Determination and medical records, and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise with respect to the issue of whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment from January 6, 2017, the date following his last day of employment onward. Therefore, entitlement to a TDIU is granted from January 6, 2017 onward. However, a TDIU prior to January 6, 2017 is not warranted in this case as the Veteran was admittedly gainfully employed prior to that date except for approximately five months in 2016. However, as noted above, the Veteran has stated that his service-connected disabilities did not become severe enough to prevent him from working until October 20, 2016 and did not cause him to make changes in his work activity until December 2016. See SSA Form 831 Disability Determination. Prior to January 6, 2017, and excluding the period from February 2016 to July 2016, the Veteran reported working no less than 10 hours a day, six days a week, at an hourly rate of no less than $25. In light of the foregoing, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment for the period on appeal prior to January 6, 2017. Therefore, although TDIU is awarded from January 6, 2017 onward, entitlement to a TDIU is denied for the period on appeal prior to January 6, 2017. See 38 C.F.R. § 4.16. In so finding, the Board has applied the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.