Citation Nr: 21029437 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-06 803 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), on an extraschedular basis, prior to January 13, 2011, is granted. Entitlement to an effective date, prior to January 13, 2011, for the grant of Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is granted. REMANDED Entitlement to a rating in excess of 10 percent for sinusitis is remanded. FINDINGS OF FACT 1. Prior to January 13, 2011, the Veteran was service connected for major depressive disorder, rated as 50 percent disabling; degenerative joint disease, rated as 40 percent disabling and sinusitis, rated as 10 percent disabling. His combined rating prior to January 13, 2011 was 60 percent. 2. Prior to January 13, 2011, the Veteran's service-connected degenerative joint disease and major depressive disorder caused symptoms so severe as to preclude him from maintaining gainful employment. 3. TDIU, prior to January 13, 2011, is shown by the record, which includes entitlement to DEA benefits. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, the criteria for a finding of a TDIU under 38 C.F.R. § 4.16 (b), prior to January 13, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. 2. The criteria for entitlement to DEA benefits, prior to January 13, 2011, have been met. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to August 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) on the issue of entitlement to an earlier effective date for TDIU. In September 2016, the Board remanded the matter of entitlement to a rating in excess of 10 percent to afford the Veteran a Board hearing. In January 2017, the Veteran withdrew his request for a Board hearing on the issue of an increased rating for sinusitis. Therefore, the Board finds no outstanding hearing requests. In April 2019, the Board denied the Veteran's claim for a rating in excess of 10 percent for sinusitis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court vacated the denial and remanded the matter for further adjudication. Effective Date 1. Entitlement to a TDIU, on an extraschedular basis, prior to January 13, 2011. The Veteran contends that he is entitled to TDIU, prior to January 13, 2011, because his service-connected disabilities interfered with his ability work. For the reasons explained below, the Board finds that entitlement to TDIU, prior to January 13, 2011, is warranted. 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 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). Prior to January 13, 2011, the Veteran was service connected for major depressive disorder, rated as 50 percent disabling; degenerative joint disease, rated as 40 percent disabling and sinusitis, rated as 10 percent disabling. His combined rating prior to January 13, 2011 was 60 percent. Therefore, prior to January 13, 2011, the criteria for a TDIU under 38 C.F.R. § 4.16 (a) was not met. Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the 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 requirements set forth in 38 C.F.R. § 4.16 (a). In its April 2019 remand, the Board referred the Veteran's claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in an October 2019 decision and determined that individual unemployability benefits were not warranted. Consequently, as the claim has been denied on an extraschedular basis by the Director of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). The Veteran is a high school graduate and has worked primarily as a truck driver See November 2009 VA Form 21-8940. He has not engaged in substantially gainful employment since 2007. There is evidence that his service-connected joint disease of the lumbar spine and major depressive disorder preclude him from engaging in substantially gainful employment. An October 2008 vocational assessment indicates that the Veteran had a history in a medium semi-skilled labor position in his previous positions as a truck driver. He also had employment history in the construction industry which is considered heavy unskilled work. However, the Veteran's back disability caused pain which would impact his ability to engage in physically laborious positions. In a December 2008 correspondence, the Veteran stated that his back disability caused symptoms of pain and caused him to be depressed and unable to complete his usual activities. In a September 2009 correspondence, the Veteran's ex-wife stated that the Veteran suffered from symptoms of hallucinations; lacked social skills and has had many jobs due to his inability to maintain substantially gainful employment. In a January 2010 correspondence, the Veteran stated that his mental disability causes him to have violent outbursts and his back disability precludes manual labor jobs, which have been his only jobs. At a May 2010 VA general examination, the examiner noted that the Veteran's spinal disability caused decreased mobility; difficulty lifting; carrying; lack of stamina and pain. At the October 2015 Board hearing, he testified that he stopped working due to his back and shoulder. See Board Hearing Transcript, p.10. He testified that he worked as a truck driver since 1993. Id. at 11. The Veteran is in receipt of Social Security Administration (SSA) Disability benefits for multiple disabilities, including major depressive disorder and lumbar disc disease. Although receipt of SSA benefits is not conclusive evidence that the Veteran is entitled to a TDIU, medical records used to develop his SSA disability claim were helpful in the Board's analysis. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment, prior to January 13, 2011. In that regards, the Board credits evidence that the Veteran has limited education and skills. The Board also assigns probative value to evidence that the Veteran has mainly worked in physically laborious and unskilled positions. The Veteran's service-connected back disability symptoms precluded employment in such positions. Further, the Veteran's mental health disability precluded him from interacting with people on a daily basis. Furthermore, there is no evidence that the Veteran had the skills to work in a sedentary position. Resolving doubt in favor of the Veteran, the claim of entitlement to TDIU, prior to January 13, 2011, on an extraschedular is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Entitlement to an effective date prior to January 13, 2011, for the grant of DEA benefits under Chapter 35, Title 38, United States Code, Basic eligibility for DEA benefits under Chapter 35, Title 38, United States Code exists if a veteran has a service-connected total disability that is permanent in nature. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where a veteran's service-connected disabilities are rated 100 percent disabling under the Rating Schedule, or if a veteran is unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. As decided herein, a TDIU, prior to January 13, 2011, has been granted, because the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history. Therefore, resolving all reasonable doubt in his favor, the Board finds that the Veteran meets the basic eligibility requirements for DEA benefits. Accordingly, the Board finds that eligibility for DEA benefits has been established. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for sinusitis is remanded. The Veteran contends that he is entitled to a rating in excess of 10 percent for sinusitis. In a September 2019 Board decision, the Board denied the claim due to, in part, no evidence of rhinitis. In a September 2020 Memorandum Decision, the Court found the Board's decision clearly erroneous because there was evidence of rhinitis in the Veteran's medical treatment records. Although there is evidence that the Veteran may have been diagnosed with rhinitis in the past, it is unclear whether during the period on appeal (July 2011 claim), the Veteran had a diagnosis of rhinitis. In that regard, the May 2010, October 2011 and June 2017 VA examination reports are silent for any rhinitis diagnosis. Based on the foregoing, the Board finds that a remand is necessary to obtain clarification about the Veteran's diagnoses. The matters are REMANDED for the following action: Obtain an addendum medical opinion from the June 2017 examiner regarding the severity of the Veteran's sinusitis. The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner finds another examination is necessary, another examination should be scheduled. The examiners is requested to offer an opinion as the following: Opine whether the Veteran had a diagnosis of rhinitis during the period on appeal (between July 2010 to present). The examiner is requested to reconcile medical treatment records from as early as 2007 which indicate a diagnosis of rhinitis with May 2010, October 2011 and June 2017 VA examination reports which are silent for any rhinitis diagnosis. A complete rationale for all opinions must be provided. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Baskerville, LaRita 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.