Citation Nr: 21029987 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-27 298A DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 1, 2014, is denied. Entitlement to extraschedular (ES) TDIU from April 1, 2014 is granted. FINDINGS OF FACT 1. Prior to April 1, 2014, the Veteran was gainfully employed or was able to obtain or retain substantially gainful employment due to his service-connected disabilities. 2. From April 1, 2014, the Veteran is not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU, prior to April 1, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 2. The criteria for entitlement to ES TDIU, from April 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to April 1999. The Veteran appealed a July 2009 rating decision by the Agency of Original Jurisdiction (AOJ). In February 2018, the Board of Veterans' Appeals (Board) remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An April 2020 rating decision denied entitlement to TDIU. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where these percentage requirements are not met, entitlement to benefits on an ES basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an ES total disability rating for compensation purposes based on individual unemployability in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). The Board notes the Veteran's TDIU claim arose during the course of his increased rating claim for his back condition filed on May 21, 2009. Entitlement to ES TDIU was denied in a November 2020 decision by the Compensation Service Director. For the entire period on appeal, the Veteran is service-connected for a back condition at 40 percent disabling, left and right varicose veins both at 10 percent disabling, and noncompensable tonsillectomy and burn residuals. The Veteran's right leg radiculopathy was at 10 percent disabling and increased to 20 percent disabling from August 6, 2019. 1. Prior to April 1, 2014 The Veteran's May 2019 VA Form 8940 noted that he last worked full-time in March 2014. The Veteran previously worked as an electrician from January 2000 to July 2009 making over $5,000 a month and as a building and grounds manager from April 2010 to March 2014 making over $3,000 a month. The March 2017 VA examination report noted the Veteran quit his job at the department of corrections on March 31, 2014. Overall, prior to April 1, 2014, the Veteran was gainfully employed. The record does not demonstrate that the Veteran was working in a protected environment. Although the Veteran had a brief period of unemployment between jobs, the Veteran was able to quickly find and sustain a new job for several years and does not contend that he was unable to work due to his service-connected conditions during the period he was unemployed. As such, entitlement to TDIU prior to April 1, 2014 is denied. 2. From April 1, 2014 The Veteran has 2 years of college education and has a certificate of ministry. See May 2019 VA Form 8940. The Veteran presently works half an hour a week as a donations handler and making $103 a month. See also SSA earnings record. The Board finds the Veteran's present employment to be marginal. The Veteran stated in his May 2019 VA Form 21-8940 that as a building and grounds manager he was responsible for overseeing operations of the electrical, plumbing, and kitchen supervisors and maintenance grounds on campus. The Veteran stated the job was mostly administrative, but would have to walk around and assess projects. The Veteran stated his back condition was aggravated by the job, he would have to get assistance to move and carry heavy objects, and he has difficulty standing and walking. The March 2017 VA examiner noted the Veteran has persistent pain and must wear a brace for support and stability. The August 2019 VA examination report regarding the back noted pain with sitting and bending. The August 2019 VA examination report regarding vein conditions noted aching and fatigue in the legs after prolonged standing and walking. In July 2019, vocational consultant S.H. provided a vocational assessment of the Veteran. S.H. noted constant back pain, an inability to sit, stand, or walk for prolonged periods, an inability to lift heavy objects, and leg swelling and aching. Overall, S.H. concluded the Veteran has been unable to secure and follow any substantially gainful employment, including sedentary employment, since at least March 2014 due to his service-connected disabilities. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran worked in fields related to manual labor. As an electrician, the Veteran would have to spend long hours lifting heavy objects, on his feet, and bending to do work. As a building and grounds manager, the Veteran would also have to spend long hours either sitting doing administrative tasks or standing and walking overseeing the grounds. However, the Veteran's service-connected disabilities impacted his ability to lift and prolonged sitting and standing. Although the Veteran has a certificate in ministry, the Veteran does not have experience in that field to be able to find gainful employment. Overall, the Veteran's service-connected disabilities impact prolonged standing, walking, and sitting, and also his ability to lift items. As such, the Veteran is unable to work in manual labor positions or even customer service positions that require such activities. The Veteran also does not have training or experience in another field, such as computers, that may allow him to have suitable accommodations and breaks to be able to tend to his symptoms. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. (Continued on the next page) Therefore, the Board finds that the Veteran's service-connected disabilities, in combination, at least as likely as not prevented him from obtaining and maintaining gainful employment from April 1, 2014. Accordingly, resolving all doubt in his favor, the criteria for ES TDIU have been met for the entire period on appeal from April 1, 2014. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.