Citation Nr: 21029038 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-37 639 DATE: May 12, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a disability rating in excess of 50 percent for chronic sinusitis status post septoplasty, to include on an extraschedular basis, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 2005 to June 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2015 and September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in November 2018, at which time both were denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 memorandum decision, the Court vacated that part of the November 2018 Board decision which denied a rating in excess of 50 percent for chronic sinusitis status post septoplasty, and entitlement to TDIU, and remanded them for further development. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Rating boards should submit to the Director of Compensation Service for extra-schedular 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). 38 C.F.R. § 4.16(b). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017), the Court indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Thus, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Here, service connection has been granted for chronic sinusitis status post septoplasty, rated at 50 percent disabling; insomnia, rated at 30 percent; bilateral knee patellar tendonitis, rated at 10 percent per knee; chronic low back pain, rated at 10 percent; and adenoiditis, residuals of hernia surgery, and urethritis, each rated as noncompensable. Thus the Veteran's combined rating is 80 percent, and he meets the schedular requirements for a TDIU. In support of his claim, the Veteran submitted a vocational consulting report from October 2016 which was completed by a Certified Rehabilitation Counselor. In that report, the counselor found that the Veteran's service-connected disabilities were the main reason that he was unable to obtain gainful employment since 2013. The Veteran did attempt to work at a warehouse in 2015 but lasted approximately one month before being unable to continue due to the pain related to his service-connected conditions. The report noted that the Veteran completed three years towards a bachelor's degree in computer information technology which should serve him well in a sedentary role defined as primarily sitting with brief periods of standing and walking. However, the Veteran's service-connected insomnia and sinusitis resulted in the Veteran being unable to maintain a steady pace and fatiguing easily, which led to decreased work efficiency. The Veteran also experienced trouble with continued sitting, standing, or walking due to his service-connected bilateral knees and low back. The examiner found the combination of these limitations resulted in an inability to secure or follow a substantially gainful occupation. Following the Court's February 2020 remand, the Veteran submitted an additional Vocational Assessment from March 2021. This assessment noted that the Veteran had no degree but held a forklift certification. His last employment was in a warehouse from April to May 2015 but he found it too strenuous and his back and knees were in too much pain to continue employment. After a review of the Veteran's file the examiner concluded that the Veteran would be unable to perform the full range of sedentary physical requirements, would need to work at a reduced pace, and that he suffered from impaired concentration. The examiner opined that this combination of issues would not be tolerated in even simple unskilled sedentary occupations and that the Veteran was unable to secure or follow substantially gainful employment, including unskilled sedentary employment, due to his service-connected disabilities. Based on these reports, the Board finds that a TDIU is warranted. Clearly, the Veteran's service-connected disabilities prevent him from working even a sedentary position, due to joint pain and impaired concentration. His attempts at maintaining employment in the past were adversely and directly impacted by his service-connected disabilities. Consequently, in the Board resolves all doubt in the Veteran's favor and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. REASONS FOR REMAND Increased Rating Chronic Sinusitis The Veteran's service-connected chronic sinusitis post septoplasty is currently rated at 50 percent disabling under Diagnostic Code 6512, which is the highest schedular rating possible. The Veteran asserts that the disability is so severe that separate ratings are warranted for symptoms not contemplated by the rating schedule; specifically, difficulty hearing, swallowing, and breathing. Thus, the Board finds that an examination is warranted to address these assertions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran also contends that a higher, extraschedular rating is warranted due to such symptoms. In this respect, an exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating to the Under Secretary for Benefits or the Director of Compensation Service. Clearly, the Veteran reports symptomatology that is not contemplated by the rating criteria. He has been granted TDIU herein due, at least in part, to his service-connected chronic sinusitis post septoplasty. Thus, the Board finds that once and referral to the Under Secretary for Benefits or the Director of Compensation Service for consideration of the assignment of an extra-schedular rating, is warranted. 38 C.F.R. § 3.321 (b)(1). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current nature and severity of his chronic sinusitis. The record, to include a complete copy of this Remand, must be made available to the examiner. All indicated tests and studies should be accomplished. The examiner is asked to describe the nature and severity of all manifestations of the Veteran's chronic sinusitis, and the resulting impact on his occupational and social functioning. The examiner should specifically address the Veteran's assertions that he experiences symptoms such as trouble breathing, difficulty swallowing, and impaired hearing due to his chronic sinusitis. A rationale for any opinion offered should be provided. 2. Thereafter, refer the Veteran's claims for a rating in excess of 50 percent for sinusitis to the Under Secretary for Benefits or the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 (b)(1). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.