Citation Nr: 21039703 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-06 856 DATE: July 1, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT For the period on appeal, the probative evidence of record is at least in equipoise that the Veteran's service-connected disabilities render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C.§§ 1155, 5107 (2012), 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the claim was remanded for further development. In a March 2015 decision, the Board issued a decision denying entitlement to TDIU. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2016 order, the Court vacated the March 2015 decision and remanded the matter to the Board for further proceedings consistent with a Joint Motion for Remand (JMR). The issue was then remanded by the Board in December 2016 and November 2018 for further development. Entitlement to TDIU on an extraschedular basis Applicable law provides that a TDIU may be assigned where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). To qualify for TDIU, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. The applicable regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not on a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, for the period on appeal, the Veteran's service-connected disabilities include diabetes mellitus including erectile dysfunction, hypertension, and eye disability, rated at 20 percent, peripheral neuropathy, right upper extremity, rated at 10 percent, peripheral neuropathy, left upper extremity, rated at 10 percent, peripheral neuropathy, right lower extremity, rated at 10 percent, and peripheral neuropathy, left lower extremity, rated at 10 percent. The Veteran's combined rating was 50 percent. Consequently, the Veteran did not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). On his January 2010 application for TDIU, the Veteran reported that he last worked full time in January 2004, employed as a clerk with the US Postal Service. He indicated that all of his service-connected disabilities prevented him from following any substantially gainful occupation. The Veteran reported completing four years of high school. In a February 2010 request for employment information (VA Form 21-4192), the US Postal Service indicated that the Veteran worked as a mail processing clerk until January 2004 and he left due to regular voluntary retirement. A May 2009 VA diabetes examiner indicated that the Veteran complained of pain and numbness in his hands and feet for about a year. He would also suffer from dizziness, sweating, and weakness about every three months. A July 2009 VA eye examiner indicated that the Veteran suffered from blurred vision. A September 2013 VA diabetic sensory-motor peripheral neuropathy examiner noted the Veteran's complaints of constant pain and numbness at bilateral hands and feet. He indicated he was no longer able to walk prolonged distances. However, the examiner stated that the Veteran's neuropathy did not impact his ability to work. An October 2014 VA eye examiner noted the Veteran's complaints of not being able to drive at night due to blurred vision and required a magnifier to read small letters. However, the examiner stated that the Veteran's eye condition did not impact his ability to work. A September 2016 private vocational assessment report noted that the Veteran's numbness and weakness in his lower extremities would only allow for the consideration of sedentary work activity. However, the Veteran had no skills or experience that transfer to work at the sedentary level of physical demand. Only unskilled or semiskilled sedentary work could be considered as appropriate for him, but his problems with his upper extremities result in a moderate problem on usual daily activities which would also preclude unskilled and semiskilled sedentary work. Therefore, it was the opinion of the vocational expert that it is at least as likely as not that the Veteran is precluded from securing and following a substantially gainful occupation. This conclusion was reached considering the Veteran's education, work history, and the limitations as a resulted of his service-connected peripheral neuropathies. The vocational expert stated that although clinicians are qualified to define the limitations and symptoms extending from a condition, they have no expertise in translating this information into opining on whether or not this degree of limitation precents one from working or if they can work. Vocational experts are more qualified to make these determinations. The issue of entitlement to a TDIU on an extraschedular basis was referred for consideration by the Director of Compensation Service pursuant to the November 2018 remand. In a February 2021 memorandum, the Director of Compensation Service responded that the evidence failed to support the Veteran's contention that his service-connected disabilities supported an exceptional situation that prevented gainful employment. Although the Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16. Another private vocational expert provided an assessment in May 2021. Following an interview with the Veteran and a review of the Veteran's record, the expert indicated that it was more likely than not that the Veteran has been unable to secure and follow substantial gainful employment, regardless of skill or exertional level, since at least 2009 to the present. The expert noted that the Veteran last worked at a postal clerk, which was considered semi-skilled work at the light exertional level according to the Dictionary of Occupational Titles. The Veteran reported chronic numbness and stabbing pain throughout his bilateral lower extremities. He noted an inability to sit, stand, or walk for a nominal amount of time without pain or numbness. He also reported instability. He also reported inability to consistently perform tasks requiring repetitive range of motion or fine manipulation with his bilateral upper extremities. He also experienced weakness and dropping things. His diabetes made him limit his food and caused him to get tired and foggy due to blood glucose level fluctuations. He also had difficulty concentrating, excessive thirst, headaches, and blurred vision. His sleep was also affected, and he stopped driving 2-3 years ago and relied on his son for transportation. The expert stated that the Veteran had been unable to meet the physical requirements of the sedentary exertional level. As it requires the ability to sit for prolonged periods, the Veteran could not perform sedentary work because of his inability to sit, stand, or walk or long periods of time. The Veteran's risk of falling would be a safety hazard and would not be tolerated in the workplace. Sedentary jobs also require functional use of both upper extremities, but the Veteran's numbness, pain, and weakness would make him at least as likely as not limited in consistently utilizing his hands for reaching, grasping, and tasks involving fine manipulation. This was supported by VA treatment records, VA examination reports, and the Veteran's statements. In considering the Veteran's education and work history, the Veteran's service-connected conditions, and associated limitations with concentration negate any marginal transferable skills he would have acquired throughout his semi-skilled vocational history as a postal clerk. His education also did not provide a significant vocational advantage, and his inability to maintain concentration precluded him from executing multi-step processes and completing complex tasks accurately and efficiently. His reduced pace and productivity, along with his inability to meet the demands of sedentary work would not be tolerated even in simple, unskilled sedentary occupations. The Board notes that some VA examiners and the Director of Compensation Service have indicated that the Veteran's service-connected disabilities did not impact his ability to work. However, given the opinions of the vocational experts, along with the documented symptoms that the Veteran suffers from due to his service-connected diabetes and peripheral neuropathies; the Board finds that the evidence is at least in relative equipoise, meaning evenly balanced for and against the claim, as to whether the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities for the period on appeal. Overall, the record reflects symptoms of the diabetes including erectile dysfunction, hypertension, and eye disability and right and left lower extremity radiculopathies would preclude the Veteran from maintaining substantially gainful employment in a position similar to that of a postal clerk, for which he has training and experience. Resolving reasonable doubt in favor of the Veteran, the Board finds that the combination of symptoms and functional impairment caused by the service-connected disabilities have prevented the Veteran from maintaining substantially gainful employment. Therefore, for the period on appeal, the Board finds that TDIU is warranted on an extraschedular basis. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.