Citation Nr: 21028540 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-00 718 DATE: May 11, 2021 ORDER Effective from August 31, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT From August 31, 2010, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Effective from August 31, 2010, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from December 1968 to September 1972. In March 2021, the Board denied the issue of entitlement to an initial rating in excess of 10 percent, prior to September 25, 2012, and in excess of 20 percent thereafter, for diabetes mellitus type II. However, the Board granted a TDIU on a schedular basis with an effective date of January 25, 2018. The issue of entitlement to a TDIU on an extraschedular basis for the period prior to January 25, 2018, was remanded by the Board in March 2021 to refer the issue to the Director of Compensation Services for additional consideration. A memorandum was issued in April 2021 and the issue returns to the Board for additional appellate consideration. 1. Entitlement to a TDIU on an extraschedular basis for the period prior to January 25, 2018. On January 22, 2016, the Veteran submitted an application for increase rating based on unemployability. In an April 2016 rating decision by the RO, his application was denied. The RO noted the Veteran had not been found unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities. Furthermore, the RO noted he did not meet the schedular criteria for a TDIU. His application was again denied in February 2018. Thereafter, in March 2021, the Board granted TDIU and remanded the issue of entitlement to a TDIU on an extraschedular basis for the period prior to January 25, 2018, the effective date of the Veteran's TDIU. In the Board's remand, the Board noted that since the claims on appeal originally included two initial increased rating claims that dated as far back as August 31, 2010, the Board recognized under Rice v. Shinseki, 22 Vet. App. 447 (2009) that as the Veteran's initial increased rating claims included a TDIU claim under Rice, the period of review for entitlement to TDIU actually was from the date of August 31, 2010. (In its remand, the Board actually identified the date as January 1, 2010, but this appears to be a typographical error in the process of identifying the effective dates applicable to the grants of service connection for diabetes and ischemic heart disease.) 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). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, 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 purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." The Board notes that prior to January 25, 2018, the Veteran does not meet the schedular criteria for a TDIU. From August 31, 2010, to January 9, 2011, the Veteran was in receipt of a 30 percent rating. From January 10, 2011, to May 15, 2014, the Veteran was in receipt of a 40 percent disability rating. From May 15, 2014, to January 25, 2018, the Veteran was in receipt of a 70 percent rating. Where these percentage requirements are not met, as is the case here, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Per the Board's March 2021 remand directives, the Veteran's claim was referred to the Director of Compensation Services (Director) for extraschedular consideration. A memorandum dated April 2021 is included in the record as to whether the Veteran is entitled to a TDIU on an extraschedular basis. Since the Director has provided a determination as to whether entitlement on an extraschedular basis is warranted, the Board now has jurisdiction to decide the issue. Wages v. McDonald, 27 Vet. App. 233 (2015) (the Board is required to obtain the Director's decision before extraschedular TDIU may be awarded"). In the April 2021 memorandum, the Director determined the overall evidence fails to support the contention that the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevents employment. Ultimately, the Director recommended the Veteran not be granted entitlement to a TDIU on an extraschedular basis. However, the Board notes the Director's opinion is not considered evidence and is not afforded significant probative value. Id. (a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director is not evidence, and is not a policy decision, but is simply a decision or adjudication adopted by the RO and reviewed de novo by the Board). Therefore, the Board does not afford the Director's opinion significant probative weight. Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard to determine if a veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). The Veteran completed high school and trade school with a degree in mechanical engineering. He worked for a computer company that manufactured computer chips. He was employed as computer chip inspector, "IC processor," from January 1978 to January 2005. The record states the Veteran last worked in October 2005. His medical records indicate he underwent a coronary artery bypass for his service-connected coronary artery disease after a heart attack in 2005. Further, his medical history reported treatment in 2005 for cancer of the larynx, for which he is currently service connected at 10 percent disabling since May 2014. The Veteran is also service connected for loss of smell and taste due to his cancer of the larynx. He also reports a residual hoarseness in his voice due to his cancer. He is also service connected for diabetes mellitus type II. He was directed to follow a restricted diet in July 2012 and began taking medication in September 2012. January 2014 medical records note the Veteran began taking Metformin and in October 2015 he was directed to increase activity. The Veteran has also been service connected for bilateral hearing loss since October 2017. The Veteran has stated that his hearing loss causes difficulty hearing in groups and social settings. He also utilizes hearing aids to assist in hearing. Importantly, records from the Social Security Administration (SSA) show the Veteran was found disabled effective October 2005 due to heart problems, high blood pressure, cancer, and anxiety. The Board notes that the Veteran is not service connected for high blood pressure and anxiety. Furthermore, SSA standards are not the same as VA, but SSA findings are additional evidence that may be considered. Taking into account the Veteran last worked in January 2005, his service-connected disabilities to include coronary artery disease, diabetes, cancer of the larynx and its residuals, and bilateral hearing loss, and the SSA's determination that he is disabled, in giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities since August 31, 2010, the effective date for the grant of service connection for his ischemic heart disease that was assigned a 30 percent rating based on the Board's previous decision in this appeal in November 2018. With all doubt resolved in favor of the Veteran, the Board finds that the evidence supports an award of TDIU on an extraschedular basis from the date of August 31, 2010. 38 U.S.C. § 5107. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.