Citation Nr: 21032861 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-00 902 DATE: May 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, prior to April 20, 2015 is granted. FINDING OF FACT The Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected neck and back disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1982 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions. The Board remanded the claims for further development in March 2021. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that his service-connected neck and back disabilities have prevented him from working during the appeal period. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he/she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service (Director), for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this case, the Veteran was awarded a TDIU effective April 20, 2015. The Veteran asserts that he is entitled to a TDIU prior to this date. The Veteran's combined disability rating for his service-connected disabilities prior to April 20, 2015, is 50 percent from February 20, 2015, and 40 percent from February 28, 2012. Accordingly, the Veteran does not meet the minimum schedular requirements for TDIU. 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU prior to April 20, 2015 in this case is on an extraschedular basis. 38 C.F.R. § 4.16(b). Thus, the central inquiry is whether the Veteran's service-connected disabilities render him unemployable. In this regard, the question is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a 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. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In March 2021, the claim was referred to the Director for extra schedular consideration. In March 2021, the Detroit Regional Office (RO) submitted a memorandum discussing the Veteran's condition prior to April 20, 2015, and ultimately recommended that extra-schedular entitlement to a TDIU is allowed. In coming to this conclusion, the RO found that the Veteran ceased to work as a maintenance/industrial mechanic in January 2012. The RO noted that this work was consistent with functional requirements to include lifting over 20 pounds. Specifically, evidence of record shows that he would routinely have to carry a tool belt weighing approximately 60 pounds up and down ladders. The Veteran would also have to perform overhead work, bending, significant or repetitive twisting, and prolonged periods of sitting or standing. Lastly, the RO noted that medical evidence indicated functional impairment of the back and neck to limit the Veteran from lifting over 10 to 20 pounds, bending, significant repetitive twisting, or prolonged periods of sitting or standing. Based on this, the RO recommended that an extraschedular TDIU was proper. In March 2021, the Director denied an extraschedular rating for TDIU. The Director noted the same functional impairment as the RO, that the Veteran's neck and back disabilities present the inability to perform overhead work, lifting over 10 to 20 pounds, bending, significant or repetitive twisting, or prolonged periods of sitting or standing. However, the Director went on to state that the American workplace has had a dramatic shift to less strenuous jobs compared to years past. The Director found, combined with this labor shift, that the Veteran's multiple years of college education show an aptitude to be able to learn new skills to obtain substantially gainful employment. Additionally, the Veteran submitted a private medical opinion in January 2006. This opinion found that the Veteran's back pain had progressed to the point where the physician felt the Veteran was unable to continue his line of work and still be productive. This opinion was further reiterated in a July 2011 private medical opinion stating that the Veteran needs lighter work, but that is not available to him. (Continued on the next page) The Veteran also submitted a statement in May 2012 describing his back pain. The Veteran stated that the pain is so bad in his back that he is unable to work as a result of the pain and the restrictions placed on him to address the pain. Based on the foregoing, resolving any doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise to support the grant of entitlement to TDIU prior to April 20, 2015 on an extraschedular basis. As noted, the Director of Compensation and Pension Service denied an extraschedular rating for the Veteran's service-connected disabilities. However, 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 Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and may assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Board finds the lay testimony, private medical opinions, and the Detroit RO memorandum the most probative evidence of record. Therefore, based on the evidence as a whole, the Board finds that an extraschedular TDIU prior to April 20, 2015 as a result of the Veteran's service-connected neck and back disabilities should be awarded as it is clear that such disabilities preclude employability. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.