Citation Nr: 21030363 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-32 947 DATE: May 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since October 4, 2016 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 4, 2016 is remanded. FINDING OF FACT Since October 4, 2016, the evidence of record is at least in equipoise that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantial gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for TDIU have been met since October 4, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1969. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in October 2018 and July 2020 for additional development and has since returned to the Board for appellate review. Law and Analysis All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. 361, 363 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran has met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). He is service-connected for posttraumatic stress disorder (PTSD), rated at 70 percent disabling; coronary artery disease with post-surgical chest scar, rated at 30 percent disabling; diabetes mellitus type II with erectile dysfunction, rated at 20 percent disabling; tinnitus, rated at 10 percent disabling; hypertension associated with diabetes mellitus type II with erectile dysfunction, rated at 10 percent disabling; and left ear hearing loss, rated at zero percent disabling. The combined evaluation has been 90 percent, effective October 4, 2016. In considering the evidence of record, and resolving any reasonable doubt in the Veteran's favor, the Board concludes that that the combined effects of the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation for the period under consideration. The Veteran maintains that he is unemployable as the result of his diabetes, tinnitus, hearing loss, hypertension, and coronary artery disease. He reports that he worked as a dental technician for 42 years, last worked in August 2011, and has not had additional education. See March 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; September 2019 PTSD disability benefits questionnaire. The record documents that the Veteran's service-connected disabilities affect his ability to be employed in a position that requires physical and non-physical work. Specifically, February 2013 VA examination reports note that he has increased fatigue, shortness of breath, dizziness, and chest pain upon moderate exertion; can only walk about 50 yards before he has to sit; and is fatigued after sitting for more than two hours. Further, the February 2013 reports note that these impairments make it difficult for the Veteran to maintain physical and non-physical employment. See February 2013 general medical VA examination report; February 2013 diabetes mellitus VA examination report; February 2013 heart conditions VA examination report. Additionally, the Veteran's PTSD affects his ability to secure and maintain substantially gainful employment in both physical and non-physical positions. Specifically, an October 2016 VA examination report indicates that the Veteran has difficulty establishing and maintaining effective work relationships, an inability to establish and maintain effective relationships, and difficulty in adapting to stressful conditions, including work settings. A September 2019 VA examination report indicates that his mental disability would make it difficult to work in a majority of work environments as he would likely experience insufficient sleep that would cause him to be tired on work days, and his anxiety and mood would likely lead him to experience periods of lessened productivity and efficiency at work. Further, the Veteran's hearing disabilities affect his employability as his hearing loss makes him unable to distinguish some voices and words and his tinnitus is loud, distracting, and makes it hard to distinguish sounds. See September 2019 VA examination report. The Board acknowledges October 2020 VA examination reports that indicate that the Veteran's coronary artery disease and diabetes do not restrict his ability to perform physical labor or sedentary work. However, although a medical opinion is probative, it is not dispositive. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (2009); 38 C.F.R. § 4.2. Thus, the Board finds the evidence to be at least in equipoise that the Veteran's service-connected disabilities limit the occupational work that he could perform. As discussed above, he would be unable to hold a position that required physical work due to his service-connected diabetes and coronary artery disease. Additionally, he would also be unable to hold any position, physical or non-physical, that required him to interact with others or adapt in a stressful environment due to his service-connected PTSD. He also could not be employed in positions that require him to distinguish between voices and sounds due to his hearing loss and tinnitus. Moreover, the fatigue associated with his diabetes would prevent him from working in non-physical positions that would require him to sit for more than two hours. Accordingly, the Board finds the Veteran is rendered unemployable due to his service-connected disabilities, and a grant of TDIU is warranted. REASONS FOR REMAND Entitlement to a TDIU prior to October 4, 2016 is remanded. As noted above, even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases 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 Veteran has been granted TDIU since October 4, 2016 as a result of the above Board decision. However, as the Veteran's TDIU claim was filed on January 9, 2013, the period from January 9, 2013 to October 4, 2016 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that the grant of a TDIU for a portion of the period does not bifurcate the appeal from the underlying disability appeal because it only serves as a partial grant so when the AOJ fails to grant the benefit in full [i.e., entitlement to a TDIU for the entire period on appeal], that portion of the claim that remains unresolved is still on appeal). The Veteran does not meet the schedular requirements for a TDIU for the period under consideration. However, VA policy is to grant TDIU, regardless of the percentages, when service-connected disability renders a veteran unemployable. 38 C.F.R. § 4.16 (b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16 (b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Here, the Veteran has reported that his diabetes, tinnitus, hearing loss, hypertension, and coronary artery disease prevented him from obtaining and maintaining gainful employment since he last worked in August 2011. As previously noted, February 2013 VA examination reports document the Veteran's increased fatigue, shortness of breath, dizziness, and chest pain upon moderate exertion; can only walk about 50 yards before he has to sit; and is fatigued after sitting for more than two hours. Further, the February 2013 reports note that these impairments make it difficult for the Veteran to maintain physical and non-physical employment. See February 2013 general medical VA examination report; February 2013 diabetes mellitus VA examination report; February 2013 heart conditions VA examination report. Since there is probative evidence of record that the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period prior to October 4, 2016, the Board therefore finds that consideration of this TDIU claim for extraschedular consideration is appropriate under 38 C.F.R. § 4.16 (b). Thus, the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16 (b) prior to October 4, 2016 should be referred to the Director of Compensation and Pension Service for adjudication. The matters are REMANDED for the following action: 1. Refer the case to the Director of Compensation and Pension Service for an opinion regarding whether the Veteran is unemployable due to his service-connected disabilities under 38 C.F.R. § 4.16 (b) for the period prior to October 4, 2016. 2. Thereafter, readjudicate the claim for TDIU prior to October 4, 2016 on an extraschedular basis. If the benefit sought is not granted, issue the Veteran a supplemental statement of the case (SSOC) and return the matter to the Board for further review. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Williams, 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.