Citation Nr: 21032579 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-30 898 DATE: May 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis beginning on July 17, 2015 is granted. FINDING OF FACT Since July 17, 2015, the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria are met for a TDIU beginning on July 17, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1966 to January 1970. In a March 2021 decision, this Board granted a TDIU as of March 11, 2019. However, the Board also remanded this claim back to the local Regional Office (RO) for referral to the Director of the Compensation Service to additionally determine whether a TDIU was warranted on extra-schedular basis prior to March 11, 2019 under the special provisions of 38 C.F.R. § 4.16(b). In an April 2021 Memorandum Decision, the Executive Director of the Compensation Service denied a TDIU for this remaining period at issue prior to March 11, 2019, so this remaining portion of the claim is again before the Board. A TDIU is granted as of July 17, 2015, so as of an earlier effective date. The Veteran has consistently reported throughout the claim period on appeal that the combination of his diplopia (double vision) and frequent headaches prevent him from securing or following a substantially gainful occupation. Specifically, he maintains that his double vision is a safety hazard, and that his headaches require him to stop whatever he is doing and lie down daily for around 30 minutes until they subside. While, as mentioned, the Board already has granted his TDIU claim for the period since March 11, 2019, the Board now additionally finds that he was unemployable even prior to that date as of July 17, 2015. Thus, this TDIU benefit is being granted as of that earlier effective date, albeit initially on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Effectively since March 11, 2019, the Veteran has had a combined 80 percent rating for his service-connected disabilities with one service-connected disability namely, his headaches, rated as 50-percent disabling. Thus, since March 11, 2019, he has had sufficient ratings for his service-connected disabilities to meet the threshold minimum rating requirements of § 4.16(a) for TDIU consideration on a schedular (rather than extra-schedular) basis. And since, for the reasons and bases already discussed in the Board's March 2021 decision, these disabilities have rendered him incapable of obtaining and maintaining substantially gainful employment since at least March 11, 2019, he was granted a TDIU at least as of that date. There remained for consideration, however, determining whether he also was entitled to this TDIU benefit even before that date, so instead on an extra-schedular basis under the special provisions of § 4.16(b), which is why the Board remanded this remaining portion of the claim back to the RO for referral to the Director of the Compensation Service for this initial determination since the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extra-schedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extra-schedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Executive Director of the Compensation Service concluded in an April 2021 Memorandum Decision that a TDIU is not warranted on an extra-schedular basis for this remaining period at issue prior to March 11, 2019. The Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (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 extra-schedular consideration). Although the Board is required to obtain the Compensation Service Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Moreover, merely because the Board determined that extra-schedular consideration of the claim was warranted does not, in turn, ultimately mean the Board is obligated to grant this benefit. On March 14, 2019, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The Veteran initially applied for a TDIU in December 2013. In a December 2012 statement, and again on his TDIU application (VA Form 21-8940), he reported last working full time in 2010 as a manual laborer. He indicated that he had completed 12 years of grade school and two years of college, culminating in an associate degree. More recently, in August 2020, the Veteran explained that his left eye disability hindered his ability to read and write, which ultimately hampered his promotion opportunities. In addition, he expounded that his poor eyesight eventually became a liability, which resulted in his inability to work, especially when combined with his severe headaches, which are the result of eye pain caused by his service-connected eye condition. As well, he explained that his vertigo symptoms, which began around 2010 (in other words, around the time he stopped working), cause him to stagger and have significant difficulty walking. His disabilities also necessitate specially adapted handrails around his home and limit his ability to drive. The medical records in the file tend to support the Veteran's assertions that he is unable to work in any substantially gainful capacity owing to the combined functional impact of his service-connected disabilities, namely, his eye condition, headaches, and vertigo. VA eye examinations throughout the claim period reflect not only double vision but severe impairment of vision in his left eye especially, indeed, to the point of having light perception only. For example, the report of his April 2015 VA examination confirms he has severe headache symptoms, including vertigo, nausea, and vomiting. Therefore, the Board finds that his service-connected disabilities have prevented him from securing or following a substantially gainful occupation since July 17, 2015, the date on which his headaches and vertigo were established as service-connected disabilities (meaning in addition to his left eye condition that already had been determined to be a service-connected disability for many years effectively since January 22, 1970, so since the day following conclusion of his service). Ultimately, the Board finds that these service-connected disabilities prevent the Veteran from returning to the workforce and securing and following a substantially gainful occupation, when especially considering the limitations imposed on his physical ability, coupled with his work history, education, skills, and training. After resolving all reasonable doubt in his favor, the Board finds that an extra-schedular TDIU is warranted beginning on July 17, 2015. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding ... benefits."). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.