Citation Nr: 21029957 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-15 597A DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) on an extraschedular basis, from June 10, 2004 to April 20, 2010, is granted. FINDING OF FACT The Veteran's service- connected disabilities precluded him from securing or following a substantially gainful occupation from June 10, 2004 to April 20, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from June 10, 2004 to April 20, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1955 to April 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2018 and July 2020 for further adjudication. The matter returns to the Board for appellate consideration. In March 2021, the Veteran, through his representative, submitted additional evidence in support of his claim. A waiver of agency of original jurisdiction consideration was accompanied with the additional evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to a TDIU on an extraschedular basis, from June 10, 2004 to April 20, 2010, is granted. The matter of entitlement to a TDIU rating is for consideration throughout the appeal period from June 10, 2004 to April 20, 2010, the date the Veteran was in receipt of a permanent and total 100 percent schedular rating for prostate cancer. The Veteran contends that he is unable to obtain gainful employment due to his service-connected disabilities. The Veteran is service-connected for prostate cancer, rated as 100 percent disabling from April 21, 2010; bilateral hearing loss rated as 20 percent disabling from June 10, 2004 and 100 percent disabling from July 09, 2015; residuals of colon cancer as due to exposure to asbestos, rated as 20 percent disabling from June 10, 2004; tinnitus, rated as 10 percent disabling from June 10, 2004; fatigue as residuals of colon cancer, rated as 10 percent disabling from June 10, 2004; peripheral neuropathy of the bilateral extremities, each side rated as 10 percent disabling from July 09, 2015; and bilateral otitis media with perforation of the tympanic membrane, each side rated as noncompensable from June 10, 2004. Therefore, the Veteran does not meet the schedular criteria for TDIU during the entire rating period on appeal. See 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16 (b). The Board cannot award TDIU on this basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, there is evidence of record suggesting unemployability. As a matter of background, the Veteran finished high school and worked primarily in physically strenuous positions as a machine operator and janitor. A Social Security statement indicated that the Veteran worked from 1937-2003. See November 2017 Correspondence. The Veteran asserted that he has not worked in any gainful capacity since he was treated for stage III colon cancer in 2002. For the most part, these jobs were heavy in physical labor and semi-skilled. In his July 2015 application for TDIU, the Veteran reported he was too disabled to work due to his service-connected colon cancer and hearing loss, and that he previously worked as a machine operator in December 2000 with an earning maximum of $1,944/month. He reported frequent bowel movements and fatigue limited his daily activities. In a September 2004 correspondence, the Veteran indicated that he worked at Springfield Tablet Mfg. Company from June 1959 to December 2001. During his August 2007 Board hearing, the Veteran testified that he got very tired as a result of his chemotherapy treatments for his colon cancer. A March 2009 VA examination report noted the Veteran's retirement and limitations in daily activities by frequent bowel movements and fatigue. In his July 2015 Notice of Disagreement (NOD), the Veteran reported debilitating fatigue and difficulties in accomplishing daily tasks, to include mowing the lawn. He also reported that he no longer had stamina or energy as he once did prior to his chemotherapy treatments, and suffered from bowel incontinence limiting his ability to work. In July 2015 correspondence, the Veteran's son, R.L.M, submitted a lay statement, dated May 2014, indicating that his father had very little energy throughout the day, became easily fatigued after working a few hours, and had trouble with bowels during the day since contracting colon cancer. A November 2017 private opinion from Dr. P.C. indicated that the Veteran's service-connected colon cancer was the proximate cause for his ongoing cancer related fatigue, bowel urgency and incontinence, and the inability to secure gainful employment since 2002. He concluded that the colon cancer residuals and hearing condition prevented the Veteran from rejoining and working in a typical occupational or sedentary setting due to physical limitations, lack of stamina, fatigability, and reduced hearing. He also noted the Veteran required proximity to a bathroom throughout the day. A March 2020 vocational counselor indicated a review of the Veteran's C-file and concluded that the Veteran was unemployable due to residuals of colon cancer surgery in January 2002, to include fatigue and diarrhea. Additionally, the counselor noted the Veteran's hearing loss posed limitations in the ability to hear conversations in a noisy work environment, thereby precluding his ability to fully perform in prior work capacities that would not otherwise allow for unscheduled work breaks. In September 2020, the Director of Compensation Service reviewed the Veteran's claims file and determined that the evidence failed to show the Veteran's service-connected disabilities or the combination of effects of such disabilities support an exceptional situation that prevented gainful employment. The Director noted the Veteran's high school education and occupations in primarily strenuous positions as a machine operator and janitor. The Director ultimately concluded that the Veteran would not be limited to medium work as noted by the Vocational assessment, and noted that there were many jobs in the workplace that required only light activity for which a person with a high school education would be capable of performing. Additionally, the Director noted that many of these jobs would be indoors, in a less demanding environment than a machine operator with restroom facilities for use as needed, and quieter. A March 2021 addendum vocational opinion was obtained from the same March 2020 counselor. The counselor noted a review of the Veteran's medical history, lay statements, and other relevant evidence of record, as well as, another interview with the Veteran. The counselor concluded that the Veteran had been unemployable since 2002 due to his service-connected colon cancer residuals, fatigue, hearing loss, and tinnitus. It was also indicated that the facts surrounding the Veteran's situation did not fit the scenario described within the September 2020 VA advisory opinion, including his need for unscheduled breaks which employers would not tolerate due to impact on work productivity and lack of skills required for sedentary occupation or computer literacy, and that the advisory opinion did not identify any specific position for which the Veteran could perform based on his specific disabilities, employment history, and educational background. The counselor also noted the Veteran's lack of experience with multi-line telephones, copiers, fax machines, or other office equipment and was most recently taught how to use a computer for email and internet searches. Notably, the counselor pointed to the fact that the Veteran was unable to predict occurrences of spontaneous diarrhea requiring the need for numerous unscheduled breaks throughout the day, which would not be tolerated by many employers, and would require regular and unscheduled bathroom breaks. Lastly, the counselor reported the Veteran's hearing loss and tinnitus would cause an additional barrier in a light or sedentary work environment, even in a quieter setting than his prior employment in machinery due to difficulties understanding instructions regarding the use of office equipment or hearing conversations with coworkers, and the inability to maintain energy throughout the day with minimal breaks due to fatigue. In sum, the vocational report concluded that based upon specific duties associated with the Veteran's employment history, limited education (high school diploma), and documented medical limitations posed by his service-connected disabilities, the Veteran would be unable to secure or follow gainful employment within an office environment, including basic computer literacy. After careful consideration of the evidence of record, the Board finds that the record supports a finding of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) from June 10, 2004 to April 20, 2010. The Board finds the March 2021 vocational expert's report to be particularly probative and persuasive, as it was based upon an interview with the Veteran and an extensive review of the entire record, to include the September 2020 VA advisory opinion, accompanied by a sufficient, thorough rationale that is consistent with the medical evidence of record and the Veteran's prior work history and education. As such, the Board finds that his service-connected disabilities precluded him from securing or following substantially gainful employment for the period on appeal. In reaching this conclusion, the Board acknowledges the Director of Compensation Service's finding that the American workforce has had a dramatic shift in labor force over the last several decades and that a person does not need to be college educated or highly skilled; however, the competent and probative evidence of record demonstrates that the Veteran was unable to perform sedentary duties as suggested due to the confines of his service-connected disabilities and lack of experience required to perform duties in an office setting, including basic computer literacy. Based on the foregoing, entitlement to an extraschedular TDIU has been established for the period from June 10, 2004 to April 20, 2010. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.