Citation Nr: 21030472 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-28 011A DATE: May 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted on an extraschedular basis, effective January 1, 2008. FINDING OF FACT The Veteran's service-connected disabilities, in particular sinusitis and associated headaches, have prevented him from securing or maintaining a substantially gainful occupation since January 1, 2008. See January 2006 PTR; August 2006 VA Examination; November 2010 VA Examinations; February 2011 Notice of Disagreement; November 2018 TDIU Application. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis are met from January 1, 2008. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from November 1968 to November 1972 and from January 1974 to January 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran is in receipt of a TDIU from April 19, 2010, the date of his schedular eligibility. However, "[i]t is the established policy of the Department of Veterans Affairs 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). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim is first referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. Here, the claim was referred to the Director of the Compensation Service in January 2021, following a December 2020 Board Remand. In an administrative review accompanying its referral, the RO recommended that that TDIU be granted on an extraschedular basis from April 19, 2009, the date the Veteran's service-connected sinusitis rating was increased to 50 percent. The RO indicated that the 50 percent rating reflected severe enough impairment to warrant a TDIU. Notwithstanding the RO's recommendation, the Director of the Compensation Service issued an Advisory Opinion in January 2021, concluding that a TDIU was not warranted on an extraschedular basis before April 19, 2010. The opinion acknowledged the Veteran's functional impairment due to his service-connected conditions, but stated that the Veteran was nevertheless capable of sedentary or light employment during the relevant period, especially in light of the fact that "technological advances . . . have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available." Following referral to the Director of the Compensation Service, a TDIU may be assigned on an extraschedular basis where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran's only service-connected disabilities for the period before April 19, 2010 are sinusitis, the residuals of a fractured left wrist, a ganglion cyst of the right wrist, central posterior subscapular cataractous spots, and gastroesophageal reflux disease. The central issue is whether the aforementioned disabilities precluded him from securing and following a substantially gainful occupation during this period; in other words, whether these disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran's education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran reported that he has a high school education, in addition to various military training and "auto-body" training. See November 2018 TDIU Application. His employment history, as reflected in the record, includes only jobs dealing with automobiles, such as repairs and auto parts. See January 2006 Private Treatment Record (PTR) (noting Veteran had recently lost his job as a mechanic); November 2010 VA Examination (noting symptoms made "mechanic work" difficult); June 2018 Board Hearing (Veteran testified that he had lost a job at Advance Auto Parts due to his disabilities in 1997). The Veteran has consistently reported that his sinus symptoms, including headaches, have prevented him from working. He has reported that he experiences headaches requiring him to lie in bed up to two or three times per week. See VA Examinations dated August 2006, November 2010. He has also reported that he has been unable to work as a car mechanic, because lying on his back aggravates his sinus symptoms, causing sinus blockage. See August 2006 Statement of Veteran's Son; August 2006 VA Examination. Finally, the Veteran has reported that he was let go from a job more than once due to his headache and sinus disabilities. See January 2006 PTR (Veteran reported he had lost his job in the last year as a mechanic at a "tire place"); June 2018 Board Hearing (Veteran testified he was fired in 1997 from Advance Auto Parts) The Veteran's statements and testimony regarding his symptoms and their functional impact find some support in the medical record. VA examinations in August 2006, November 2010, July 2015, and October 2019 all note symptoms of sinus pressure and headaches. The August 2006 examiner noted "constant nasal congestion, posterior drainage, facial pressure, headaches." The examiner noted functional impairment including inability to breathe when laying under a car and constant headaches causing the Veteran to miss work. The November 2010 examiner noted severe headaches causing the Veteran to be "bedridden" four times per month for a day and a half. At the July 2015 examination, the Veteran reported severe drainage in the throat that kept him "choked up" throughout the night, and severe pressure behind his eyes. In addition, a January 2006 PTR notes severe nasal blockage and sinus pressure and frequent headaches, and a May 2016 private medical examination notes chronic nasal drainage keeping the Veteran up at night. On the other hand, the July 2015 and October 2019 VA examinations noted findings of no functional impairment associated with the Veteran's sinus condition and headaches. Considering the entirety of the record, however, the Board finds that the preponderance of the evidence indicates that the Veteran's sinus condition and related headaches have caused him to be bedridden up to two or three times per week and prevented him from working on his back underneath cars since the time he was last employed full time, in January 2008. See November 2018 TDIU Application. Therefore, and in light of the Veteran's education and work experience limited solely to work with automobiles, the Board finds that the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation from January 1, 2008. Accordingly, a TDIU is warranted on an extraschedular basis from that date. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.