Citation Nr: 21029876 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-02 767 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis is granted. FINDING OF FACT The Veteran's service-connected disabilities at least as likely as not prevent him from securing and following substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION This matter was most recently before the Board of Veterans' Appeals (Board) in October 2020, when it was remanded so the Agency of Original Jurisdiction (AOJ) could refer the issue of entitlement to TDIU on extra-schedular basis to the Director, Compensation Services, for initial adjudication in accordance with Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In December 2020, the Director issued an advisory decision denying TDIU in the Veteran's case. The matter has now been returned to the Board for further appellate consideration. Although the Veteran does not meet the schedular percentage requirements, it is established VA policy 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). The Director's decision in this regard is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct 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 extra-schedular consideration). In its October 2020 remand, the Board outlined the evidence of record that supported its decision that the Veteran's case should be referred to the Director for extra-schedular TDIU consideration. This evidence shows the Veteran has a history of fine electric work. The record further establishes he has not worked since a fall that resulted in an award of compensation under 38 U.S.C. § 1151 for diplopia from an orbital fracture and residuals of right-hand fracture affecting all the right and fingers and the thumb. Although the award of compensation under 38 U.S.C. § 1151 is not technically an award of service connection, the Board will refer to the orbital fracture and right-hand fracture as service-connected disabilities for the purpose of its TDIU analysis. The Veteran is also service connected for right elbow bursitis, residuals of a nose fracture, and bilateral hearing loss. VA examiners have reported the Veteran is unable to work due to dexterity loss of the right dominant hand and double vision and nausea resulting from diplopia due to his orbital fracture, especially when considering his past work experience with small electrical components. The Board acknowledges the Veteran was granted disability benefits by the Social Security Administration in June 2002 due to nonservice-connected lumbar and cervical spine degenerative disc disease, but he eventually returned to work remaining gainfully employed until the fall that led to the award of compensation under 38 U.S.C. § 1151 for diplopia from an orbital fracture and residuals of right-hand fracture. Although the Director found "[t]he effects of service-connected condition(s) do not prevent all forms of employment", the Board notes this is not the proper legal standard for determining whether TDIU is warranted. A finding of total occupational impairment is not necessary to establish entitlement to TDIU because there must be consideration of the claimant's work history, education, skill, and training and whether the claimant has the ability to perform the tasked required of an occupation that would produce more than marginal income in light of such factors when considering his or her specific functional impairment. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Board considered this standard in October 2020 when it determined referral for extra-schedular consideration was warranted, and there is no additional evidence that has been received that warrants deviation from the previous determination. See id. at 66-67 (holding the Board must carefully explain its reasoning when a factual finding made at the referral stage comes out differently at the review stage, to include consideration of factors such as the certainty or complexity of fact-finding in the initial referral decision and the extent to which the record has changed since the referral decision). When considering the Veteran's individual circumstances, the evidence in this case establishes his service-connected disabilities at least as likely as not prevent him from securing and following substantially gainful employment for which his eduction and occupational experience would otherwise qualify him. Resolving reasonable doubt in the Veteran's favor, the Board finds TDIU on an extra-schedular basis is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.