Citation Nr: 21040338 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-31 898 DATE: July 3, 2021 ORDER Entitlement to a TDIU for the period on appeal prior to June 26, 2014, on an extraschedular basis, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities for the appellate period prior to June 26, 2014. CONCLUSION OF LAW For the period on appeal prior to June 26, 2014, the criteria for entitlement to TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b), (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from September 1969 to September 1971, including service in the Republic of Vietnam. In February 2019, the Board denied entitlement to increased ratings for tinnitus, diabetes, and peripheral neuropathy of the right and left lower extremities prior to July 14, 2016, granted increased ratings for peripheral neuropathy of the right and left lower extremities thereafter, and remanded claims for service connection for a heart disability and an increased rating for bilateral hearing loss for further development. The Board's February 2019 decision as to the denied claims is final. See 38 U.S.C. §§ 7103(a), 7104 (2012); 38 C.F.R. § 20.1100(a) (2020). Also, in February 2019, the Board also remanded the claim of entitlement to a TDIU as intertwined with the other remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). In a June 2020 rating decision, a Department of Veterans' Affairs (VA) regional office, the agency of original jurisdiction (AOJ), granted a TDIU effective June 26, 2014, the date the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). In April 2021, the Board denied service connection for a heart disability, denied an increased rating for bilateral hearing loss, and remanded the claim of entitlement to a TDIU prior to June 26, 2014 for referral for an extraschedular rating to the Director of Compensation Services. The Board's April 2021 decision as to the denied claims is final. See 38 U.S.C. §§ 7103(a), 7104 (2012); 38 C.F.R. § 20.1100(a) (2020). An April 2021 advisory opinion from the Director of Compensation Services has been associated with the electronic claims file. The Board finds substantial compliance with its April 2021 remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Extraschedular TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Here, the AOJ awarded entitlement to a TDIU on a schedular basis, effective June 26, 2014, the date the Veteran met the schedular criteria under 38 C.F.R. § 4.16(a). See Rating Decision dated June 18, 2020. Where these percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, as it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). In cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above, the case is to be submitted to VA's Director of Compensation Services for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. 38 C.F.R. § 4.16(b). Here, as indicated above, the Veteran's case was submitted to the Director of Compensation Services, who issued an unfavorable advisory opinion in April 2021. Accordingly, the Board may review the matter on appeal. The Board is not bound by the Director of Compensation's findings on the extraschedular issue. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the Board's referral decision under 38 C.F.R. § 4.16 (b) does not require the Board to award an extraschedular TDIU). In Ray v. Wilkie, the Court recognized that a referral decision under 38 C.F.R. § 4.16 (b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. The ultimate issue of whether a 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis An award of TDIU on a schedular basis is presently assigned from June 26, 2014, the date the Veteran met the schedular criteria for entitlement to a TDIU. See Rating Decision dated June 18, 2020. The issue on appeal is whether a TDIU should be assigned at an earlier date during the period on appeal. In June 2016, the Veteran submitted a VA TDIU application (VA Form 21-8940), indicating that he has been disabled since October 2006. The Veteran's claims file reveals that he completed the ninth or tenth grade, followed by work as a butcher for four years before enlisting in the Army. See Veteran's Application for Program of Education or Training dated December 11, 1972. After separation from service in 1971, the Veteran completed at least some additional night high school coursework, although the record does not indicate whether he graduated; and he pursued a certificate program in upholstery, although it is not shown that he completed that program. See Veteran's Application for Increased Compensation Based on Unemployability received June 22, 2016; Notice of Change in Student Status dated February 9, 1973; Enrollment Certification dated October 11, 1976. Thereafter the Veteran worked for a railroad for 10 years, at VA as a custodian from 1986 to 1990, and he drove a truck from 1991 to 2005 when he stopped working after receiving a pacemaker. See VA PTSD examination dated December 19, 2016. The record shows that the Veteran is service-connected for the following disabilities: posttraumatic stress disorder; peripheral vascular disease of the left lower extremity associated with diabetes mellitus Type II, with erectile dysfunction, diabetic retinopathy, dense asteroid hyalosis (floaters), and cataracts; peripheral vascular disease of the right lower extremity associated with diabetes mellitus Type II, with erectile dysfunction, diabetic retinopathy, dense asteroid hyalosis (floaters), and cataracts; diabetes mellitus Type II, with erectile dysfunction, diabetic retinopathy, dense asteroid hyalosis (floaters), and cataracts; peripheral neuropathy of the right lower extremity associated with diabetes mellitus Type II, with erectile dysfunction, diabetic retinopathy, dense asteroid hyalosis (floaters), and cataracts; peripheral neuropathy of the left lower extremity associated with diabetes mellitus Type II, with erectile dysfunction, diabetic retinopathy, dense asteroid hyalosis (floaters), and cataracts; tinnitus; and bilateral hearing loss. See VA Rating Code Sheet dated June 18, 2020. Turning to the evidence of record for the relevant time period, VA outpatient treatment notes dated April 2012 and August 2012 reflect that the Veteran denied urgent social concerns such as employment. VA outpatient notes dated August 2013 reflect that the Veteran's diabetes mellitus was uncontrolled but asymptomatic. During a May 2014 VA functional screening, the Veteran denied needing assistance with walking, meal preparation, house-work, laundry, and handy work, and taking medications. It was noted that the Veteran did not lack the cognitive ability to make decisions. In June 2014, the Veteran denied urgent social concerns such as employment. June 2014 VA eye conditions, male reproductive system, and tinnitus examinations reflect the examiner's opinions that these service-connected disabilities presented no functional impact. However, a June 2014 VA diabetes mellitus examination reflects the examiner's opinion that the impact of the Veteran's diabetes mellitus and/or diabetes-associated conditions and/or complications thereof "on the claimant's ability to work is difficulty with prolonged standing and walking, which affects physical employment. See VA diabetes mellitus examination dated June 26, 2014. Likewise, a June 2014 VA artery and vein conditions examination notes that the functional impact of the Veteran's vascular conditions on his ability to work "is difficulty with prolonged walking, which affects physical employment. See VA artery and vein conditions examination dated June 26, 2014. A June 2014 VA hearing examination includes the examiner's opinion that the functional impact of the Veteran's bilateral hearing loss was that he "has difficulty hearing and understanding, especially if he is in a group or crowd." See VA hearing loss and tinnitus examination dated June 13, 2014. Lastly, a June 2014 VA diabetic neuropathy examination states that the functional impact of the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities "on the claimant's ability to work is difficulty with prolonged standing and walking, which affects physical employment. See VA diabetic sensory-motor peripheral neuropathy examination dated June 26, 2014. The Board finds that the June 2014 VA examinations are probative regarding whether the Veteran's service-connected diabetes mellitus, diabetic peripheral neuropathy of the lower extremities, vascular conditions, and hearing loss preclude substantially gainful employment. These evaluations were prepared by professionals with great skill in determining the effects of disabilities on employment. On the other hand, the Board finds the VA outpatient notes discussed above to be considerably less probative as the assessments consisted of broadly worded screening questions seemingly designed to assess the Veteran's overall well-being rather than identifying functional impediments to obtaining or following substantially gainful occupation. The Board acknowledges the negative April 2021 decision rendered by the Director of Compensation Services. However, the April 2021 decision is predicated, in part, on findings that the Veteran did not first become unemployable due to his service-connected disability, and that the evidence does not show frequent periods of hospitalization due to his service-connected conditions. Here, considering factors such as the Veteran's work and educational history, the nature and severity of his service-connected diabetes mellitus, diabetic peripheral neuropathy of the lower extremities, vascular conditions, and hearing loss prior to June 26, 2014, it defies reason to imagine that the Veteran would be able to secure or follow a substantially gainful occupation in physically demanding occupations such as butcher, railroad worker, custodian, or truck driver, considering that the aforementioned service-connected disabilities resulted in limited prolonged walking and standing as well as his bilateral sensorineural hearing loss that results in difficulty understanding others during the period on appeal prior to June 26, 2014. Accordingly, although the Veteran did not meet the schedular criteria for the time period in question, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities rendered him unemployable during the period on appeal prior to June 26, 2014. Therefore, reasonable doubt is resolved in his favor and an extraschedular TDIU is granted. 38 C.F.R. §§ 4.3, 4.16(b). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.