Citation Nr: 21030856 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-21 473 DATE: May 19, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis for accrued benefits is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment CONCLUSION OF LAW The criteria for TDIU, for the purposes of accrued benefits, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b), 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1970 to March 1974. He died in July 2018. The appellant is the Veteran's surviving spouse who has been substituted as the appellant in this matter. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO). In February 2018, the issue of TDIU was remanded so that it could be referred to the Director of Compensation Service (Director) to determine whether the Veteran was entitled to TDIU on an extra-schedular basis. In an undated opinion that was associated with the claims file in April 2018, the Director denied entitlement to TDIU on an extra-schedular basis. The case returned to the Board and an additional remand was issued in February 2019 as TDIU was inextricably intertwined with a pending claim for service-connected chronic obstructive pulmonary disease (COPD) for accrued benefits. The Veteran's claim for COPD was denied in December 2020 and the case is now returned to the Board to adjudicate the issue of TDIU. Entitlement to TDIU on an extraschedular basis for accrued benefits is granted A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a Veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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. 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). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, service connection has been established for five conditions. Esophageal stricture associated with laryngeal cancer, status post partial laryngectomy is evaluated at 30 percent disability; laryngeal cancer status post partial laryngectomy are evaluated at 10 percent disabling; residuals of laryngeal cancer (difficulty swallowing and choking) are also evaluated at 10 percent disabling; bilateral tinnitus is evaluated at 10 percent disabling; and bilateral hearing loss is evaluated at noncompensable. The combined evaluation for compensation has been 50 percent since June 2009. As such, the service-connected disabilities in combination do not meet the combined rating requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU. Nevertheless, the Veteran may be entitled to TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director for extraschedular consideration of TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1. (2001). As the Veteran does not meet the schedular percentage threshold, the Board referred his TDIU claim to the Director for extraschedular consideration in its February 2018 remand. In an undated opinion that was associated with the claims file in April 2018, the Director denied entitlement on an extra-schedular basis. However, the Board notes that the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). After reviewing the pertinent evidence, the Board finds that the Veteran met the criteria for an extraschedular TDIU. The evidence shows the effects his service-connected disabilities had on his ability to maintain substantially gainful employment. In an affidavit submitted by the Veteran prior to his death, he stated he left his job in 2005 due to throat symptoms and sought medical treatment until 2006 when diagnosed with laryngeal cancer and underwent a laryngectomy. Since the surgery, he struggled with speaking, could not force words out and the words he spoke were often unrecognizable. He was often unable to speak for many hours each day. He stated conversations were a challenge and made it impossible to get ideas out. Additionally, the appellant submitted a TDIU vocational report. The rehabilitation counselor noted that the Veteran was employed as a gas station clerk until 2005. He had a high school education and some college. The counselor concluded that the Veteran had been unable to secure or follow substantially gainful employment from 2005 onward due to his service-connected hearing loss, tinnitus, laryngeal cancer, and residuals from his laryngectomy. The counselor noted that the Veteran had difficulty communicating with him and the counselor often had to ask the Veteran to repeat himself. The Veteran could not speak for many hours each day, and had difficulty producing words. Furthermore, the Veteran had difficulty hearing especially if there was background noise and he was not looking at the person speaking. The Veteran stated he had difficulty concentrating for thirty minutes due to his throat pain. The Veteran would choke on his saliva multiple times a day, and it would take a few minutes for the symptoms to subside. The Board finds this report to have great probative value. The counselor supports his opinion with relevant evidence in the record and explains why the Veteran's disabilities would prevent him from maintaining substantially gainful employment. Specifically, he states employers require basic expectations to be met by their workers such as sustaining focus for at least two hours at a time throughout the day and effective hearing and communication to effectively understand and perform job duties. The Veteran's difficulty speaking and hearing, as well has his frequent choking episodes and throat pain, made the Veteran unable to meet these expectations. (Continued on the next page) As a result, the difficulties posed by his service-connected disabilities prevented him from being able to secure or follow a substantially gainful occupation in a role that was suitable for an individual with the Veteran's experience and education. Therefore, the Board finds that when resolving all reasonable doubt in favor of the appellant, the evidence shows that the Veteran unable to secure or follow a substantially gainful occupation due to his service-connected disabilities; thus, the claim of entitlement to TDIU on an extraschedular basis for accrued benefits is granted. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.