Citation Nr: 21029982 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-34 275 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis, is granted, effective August 25, 2011. FINDING OF FACT As of August 25, 2011, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extraschedular basis, effective August 25, 2011, 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 from August 1971 to May 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 Board decision denied a TDIU rating on a schedular basis under 38 C.F.R. §4.16(a) and remanded the case to the RO for development of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. §4.16(b). A December 2018 response from the Director of the Compensation service addressing the Veteran's employability prior to August 6, 2012 is of record. An April 2019 Board decision vacated the Board's October 2018 decision denying TDIU on a schedular basis, finding that the Board erred when it determined that the schedular rating requirements for a TDIU under 38 C.F.R. §4.16(a) were not met. The Board remanded the Veteran's claim for entitlement to a TDIU. During the pendency of the appeal, by way of a December 2020 rating decision, the RO granted the Veteran entitlement to a TDIU on a schedular basis from August 6, 2012. This appeal addresses the period prior to that date. Entitlement to a TDIU prior to August 6, 2012 Total disability ratings will be assigned "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." 38 C.F.R. § 3.340(a). TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A higher rating alone is recognition that the impairment makes it difficult to obtain and maintain employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to August 6, 2012, the Veteran is service connected for degenerative disc disease (DDD), rated as 20 percent disabling from December 29, 2003; residuals of a stroke with left upper extremity weakness associated with hypertension, rated as 20 percent disabling from August 25, 2011; left lower extremity muscle weakness associated with residuals of a stroke with left upper extremity weakness, rated as 10 percent disabling from August 25, 2011; peripheral neuropathy (now claimed as right leg sciatic nerve associated with DDD), rated as 10 percent disabling from October 25, 2011; and hypertension, rated as noncompensable from December 29, 2003. The Veteran's combined disability rating prior to August 6, 2012 was 40 percent from August 25, 2011 and 50 percent from October 25, 2011. As such, the Veteran is not in receipt of a combined rating of 70 percent or more, nor does he have a single service-connected disability rated at 60 percent disabling during the appeal period. Thus, the Veteran did not meet the criteria under 38 C.F.R. § 4.16(a) for schedular consideration for TDIU prior to August 6, 2012. It is also the policy of the VA, however, 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). Therefore, where, as here, the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability and the case may be submitted to the Director of the Compensation Service for consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In this case, by way of an October 2018 Board remand, the Board referred the appeal to the Director of the VA Compensation Service for extraschedular consideration. In a December 2018 Advisory Opinion, the Director denied entitlement to a TDIU. She reasoned that although the Veteran may be limited in performing certain duties associated with a specific position, the evidence did not show that his ability to work in other suitable positions was entirely compromised by disabilities he incurred in service. See December 2018 Advisory Opinion, extraschedular consideration of a TDIU. The Board notes that the Director's decision is not evidence, but rather an Agency of Original Jurisdiction decision. The Board is not bound by the Director's decision, but instead must conduct a de novo review of that decision on appeal. Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran contends that prior to August 6, 2012, he is unable to obtain or maintain gainful employment due to his service-connected back disability (DDD with radiculopathy) and stroke residuals (left upper and lower extremity weakness). Contrary to the Director's determination, the Board agrees with the Veteran, finding that from August 25, 2011, the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Specifically, the Board finds that an extraschedular TDIU is warranted for the entire period on appeal, beginning August 25, 2011, the date the Veteran filed his claim for TDIU, up until August 6, 2012, at which point he was granted TDIU on a schedular basis. The Veteran worked at the United States Department of Agriculture, Natural Resource Service, as a soil conservation technician from 1977 until December 2001, when he was forced to take retirement disability because he was no longer able to fulfill his job duties after suffering a stroke. See December 2001 notification of personnel action, August 2011 TDIU Application and Veteran's October 2011 statement in support of claim. In his position as a soil conservation technician, the Veteran noted that he was out in the fields working with the farmers. His duties included sampling soil, draining ditches, and helping with pond and terrace construction. The Veteran noted that his job included a lot of walking around in the fields. See SSA records. In terms of his education, the Veteran reported that he completed high school but did not attend college and noted that he did not have any specialized training before he became too disabled to work. See August 2011 TDIU application. Here, the record reflects that the Veteran left his job of approximately 24 years and took a disability retirement in December 2001 due to his inability to continue with the duties of his job after suffering from a stroke. See Veteran's March 2012 statement in support of claim. Additionally, during the appeal period, the medical evidence and lay statements from the Veteran describe back symptoms and stroke residuals that result in functional impairment severe enough that when considered together, preclude the Veteran from working. Specifically, the severity and functional impairment caused by the Veteran's service connected DDD with radiculopathy was evaluated at an October 2011 VA examination. After examining the Veteran, the medical provider opined that the Veteran was unable to do prolonged standing, walking, or sitting due to his lower back pain which rendered him unable to sustain gainful sedentary or physical employment. At this examination, the Veteran reported that flare-ups impact the function of his back, noting that he "can hardly function because of the pain in his lower back." He noted that he uses a cane regularly because of the pain in his lower back. The examiner described functional impairment which included excess fatigability and pain on movement. He also described lumbar tenderness to slight palpation. Further, the Veteran has reported that he cannot lift more than twenty pounds or stand for long periods of time because of the effect on his back. See August 2004 SSA Function Report. The Board attaches high probative value to the October 2011 VA examiner's opinion regarding the degree of occupational impairment caused by the Veteran's back disability. The VA examiner is experienced with assessing functional impairment caused by a disability and interviewed and examined the Veteran before rendering his determination that his back disability precluded gainful sedentary or physical employment. Further, the Board finds that his stroke residuals, which include left upper and lower extremity weakness, particularly when coupled with the limitations caused by his DDD, render him unable to perform the physical acts required by employment. The Veteran reported that he has no feeling in his left hand and can no longer work a forty hour per week job due to limited use of his left hand and leg. He reported that he cannot grip with his left hand because he has no strength and noted that his left leg collapses on him without warning. See SSA records, including an August 2004 Social Security Function report and August 2011 TDIU application. During a July 2012 VA examination, the examiner noted that the Veteran suffered a cerebral infarction in 2001 and found that the Veteran's current symptoms include a constant, chronic numbness and burning sensation and weakness to the left upper and lower extremity. The examiner stated that sometimes there is drawing up (cramping) of the left hand and left toes, as well as giving away of the left lower extremity with occasional falls but no injuries. The examiner opined that the functional impairment caused by the Veteran's stroke residuals included no prolonged walking, standing, heavy lifting or carrying. In sum, the service-connected stroke residuals which include occasions where the Veteran's left leg will collapse on him causing him to fall; coupled with the functional impairment caused by his back disability, which was found to prevent gainful sedentary as well as physical employment, render him unemployable. Resolving reasonable doubt in the Veteran's favor, the Board finds that as of August 25, 2011, the evidence is at least in relative equipoise as to whether the Veteran is prevented from securing or following substantially gainful employment due to his service-connected disabilities. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.