Citation Nr: 21031811 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-02 596 DATE: May 24, 2021 ORDER For the period on appeal prior to January 21, 2014, a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing payment of monetary benefits. FINDING OF FACT Prior to January 21, 2014, the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW Prior to January 21, 2014, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.17 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded this appeal. In a February 2021 decision, the Director of VA's Compensation Service (Director) denied entitlement to a TDIU prior to January 21, 2014 on an extraschedular basis. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to a TDIU for the period on appeal prior to January 21, 2014. It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. For a TDIU, the critical question is whether the Veteran's service-connected disabilities alone are sufficient to cause unemployability, not any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). There is no regulatory definition of "substantially gainful employment." 38 C.F.R. § 4.16(a) provides guidance in that it states: "Marginal employment shall not be considered gainful employment." It also says definitively that marginal employment exists when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16(a). VA must consider the nature of employment. Id. Notably, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray, 31 Vet. App. at 73 (2019). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director, Compensation Service, (Director) for consideration. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in December 2019. The AOJ referred the claim for an extraschedular rating to the Director in January 2021. In a February 2021 decision, the Director denied an extraschedular rating, and the AOJ continued the denial in a March 2021 supplemental statement of the case. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court has determined that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Here, for the period prior to January 21, 2014 the Veteran in receipt of service connection for a bilateral hearing loss disability (rated 0 percent disabling effective June 22, 2009 and 40 percent disabling effective September 24, 2012); a thoracolumbar spine disability (rated 10 percent disabling effective June 22, 2009); gout of the bilateral feet and knees (rated 10 percent disabling effective August 26, 2010); and tinnitus (rated 10 percent disabling effective June 22, 2009). The Veteran's combined rating is 20 percent, effective June 22, 2009; 30 percent, effective August 26, 2010; and 60 percent, effective September 24, 2012. He does not meet the schedular criteria for entitlement for a TDIU for any portion of the period on appeal. Turning to the evidence, the record reflects that the Veteran has received disability benefits from the Social Security Administration (SSA) since December 1997, based on his lumbar and cervical spine disorders. See June 2000 SSA decision, received by VA in January 2010. While not dispositive on the issue of TDIU, the SSA grant of disability compensation constitutes probative evidence regarding the Veteran's TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In a June 2003 neurosurgical report, the Veteran reported progressively worsening back pain, numbness and tingling in his lower extremities, weakness in his lower extremities, and worsened pain on physical activity. He reported difficulty with prolonged sitting and upon standing for longer than 15 minutes his back pain worsens, and he feels like his legs will give out on him. A December 2010 VA examination report indicated that the Veteran experiences constant severe middle and lower back pain. The examiner reported that the Veteran's back pain increases with physical activity and during flare-ups his back pain is only relieved with bed rest and medication. The Veteran reported an incapacitating episode in May 2010 of 18 days and that he is unable to lift anything, hunt, fish or participate in any physical activities. The Veteran indicated that it took him 45 minutes to walk 100 yards. A December 2010 VA audiology examination report indicated that the Veteran found meetings to be very difficult due to his hearing loss. He could not understand conversational speech when two or three people speak at once, or if there is any background noise. He could not understand what was said during church services, even when sitting on the first pew. He indicated that he had been a convenience store owner for 30 years before he stopped working. A March 2013 VA audiology examination report indicated that the Veteran had discontinued serving on local government boards because he could not hear at meetings. He did not attend church because he could not hear the minister. He claimed that he had stopped hunting because of his hearing loss. In April 2013, the Veteran submitted numerous lay statements indicating his hearing deteriorated; he cannot understand what other people are saying; and he cannot participate in casual conversations, especially if there is background noise. In January 2014, the Veteran submitted a statement summarizing conversations he had with various doctors regarding his back condition. The Veteran reported his primary care doctor expressed to him the severity of his back condition and told him to consider retirement to avoid possible paralysis. Id. Moreover, the Veteran reported there has not been a day in the previous 45 years that he has not experienced back pain and the he cannot sit, stand, or walk for more than 10 minutes without having pain. In February 2014, the Veteran submitted a formal claim for a TDIU. He stated that he last worked full-time in November 1998. He stated that he completed high school, did not attend college, and did not receive any training before or after becoming too disabled to work. He stated that his bilateral hearing loss and back disability prevent him from obtaining and securing substantially gainful employment. During a March 2014 VA examination, the Veteran reported the pain in his back is unbearable and he experiences muscles spasms during physical activity. Moreover, he stated that taking care of himself is a full-time job. The examiner noted the Veteran experiences functional limitations because of his back and concluded the Veteran's back condition would impact his ability to work because he is unable to stand, walk, and climb for long periods of time. The VA examiner noted that the Veteran regularly uses a cane for stability while walking, and walks slowly due to his back pain. In March 2014, the Veteran's daughter, a registered nurse, stated that she has witnessed the Veteran's hearing loss and back problems worsen over time. She reported that the Veteran's hearing has decreased severely in the last year and his back problems prevented him from participating in activities that require standing, sitting, and walking for more that 5-10 minutes. She reported that, in her opinion, the Veteran is not physically able to acquire or maintain a job because of his back and hearing loss and moreover, it would be dangerous for him and others working around him. As a nurse, the Veteran's daughter's observations and opinions regarding his functional impairments due to his service-connected disabilities are both competent and probative. In March 2014, the Veteran submitted multiple lay statements. He stated that he is not able to hold down a job because of his hearing loss and back disability. He also stated that his hearing is so bad, he feels unsafe because he is not able to react quickly to his surroundings and often by the time he hears something it is "too late" to react. In addition, the Veteran reported his doctor told him that he only hopes to preserve the existing function of his back and that improvement is not possible. Finally, the Veteran reported his doctor told him he was permanently disabled because of his back condition. As a layperson, the Veteran is competent to report his observable symptoms, experience of medical treatment, and medical diagnoses as explained to him. Id. After careful review of the evidence of record, lay and medical the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities during the period on appeal prior to January 21, 2014. The VA examination reports consistently reflect that the Veteran's back disability limits his ability to sit, stand, and walk, and that his bilateral hearing loss disability significantly limit his ability to understand other people and function in public settings. Moreover, the Board finds the Veteran's statements, the statements from his friends and family, and the SSA disability determination support a finding that the Veteran's symptoms and functional impairments related to his service-connected disabilities, including pain, functional impairments due to pain, difficulty performing activities od daily living, and severe hearing loss, preclude him from obtaining and maintaining any type of substantially gainful employment for the period on appeal prior to January 21, 2014. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted for the period on appeal prior to January 21, 2014. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.