Citation Nr: 22012117 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-51 297 DATE: March 2, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from February 21, 2008, to March 29, 2013, is granted. Entitlement to a TDIU rating prior to February 21, 2008, is denied. FINDINGS OF FACT 1. From February 21, 2008, to March 29, 2013, the Veteran was unable to obtain or retain substantially gainful employment due to his service-connected disabilities. 2. The Veteran maintained substantially gainful employment prior to February 21, 2008. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU rating on an extraschedular basis from February 21, 2008, to March 29, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for entitlement to TDIU have not been met prior February 21, 2008. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to July 1970. He appealed a July 2017 rating decision by the Agency of Original Jurisdiction (AOJ), which implemented an April 2017 Board decision that granted entitlement to TDIU. The AOJ's July 2017 decision assigned an effective date of March 30, 2013, and the Veteran requested an unspecified earlier effective date. See April 2018 Notice of Disagreement. A Board hearing was held in April 2021. A transcript is of record. In a July 2021 remand, the Board referred the Veteran's claim to the Director of the Compensation Service for extraschedular consideration of a TDIU rating for the period prior to March 30, 2013. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Preliminarily, the Board notes that the Veteran filed an application for a TDIU rating in May 2015. However, the Board previously determined that the consideration of TDIU dates to August 22, 2006. See July 2021 Board remand. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "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). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73. Prior to March 30, 2013, the Veteran did not meet the schedular criteria for TDIU. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in July 2021. See 38 C.F.R. § 4.16(b). The Director denied entitlement to extraschedular TDIU prior to March 30, 2013. See September 2021 Advisory Opinion. However, the Director's decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). As of July 24, 2007, the Veteran was service connected for the following disabilities: posttraumatic stress disorder (PTSD); bilateral flat feet; bilateral patellofemoral syndrome with degenerative joint disease (DJD) (bilateral knee disabilities); lumbar DJD; and shrapnel wounds of the mid upper lip and right foot. The Veteran has asserted that he cannot work due to his psychiatric and orthopedic disabilities. See May 2015 VA Form 21-8940, and Board Hearing Tr. at 4-5. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to March 30, 2013. The Veteran completed nine years of school. See May 2015 VA Form 21-8940. The Veteran was employed as a truck driver for majority of his career. See Social Security Administration (SSA) Records at 15. The Veteran has provided conflicting accounts of when he last worked. The Veteran's claim for SSA disability benefits stated that he stopped working on February 20, 2008. See SSA records at 14, 15. The May 2015 VA Form 21-8940 stated that the Veteran ceased working in 2009, and the Veteran and his wife appeared to confirm the latter date. See DRO Hearing Tr. at 3 and Board Hearing Tr. at 8. Elsewhere, the Veteran reported being out of work since 2007. See November 2015 report at 2. However, the date provided by the Veteran on his SSA application is more specific than the vague assertions that he stopped working in 2007 or 2009. As this date appears to be the most precise statement on this matter, the Board finds that the Veteran stopped working on February 20, 2008. The Veteran reported his joint pain and psychiatric strain impaired his ability to work. See July 2008 statement, April 2009 VA examination report, and Board Hearing Tr. at 4-5. A review of his work history shows that he was a truck driver for approximately 30 years. See December 2010 VA audio examination report. The record does not reflect that the Veteran has the requisite education or experience suitable for a sedentary work environment. During the relevant timeframe, VA examiners noted that the Veteran's feet and knee conditions caused him pain and stiffness and limited his ability to stand more than 30 minutes or walk more than a mile. See December 2010 VA joints examination report. Notably, the Veteran reported experiencing moderate, sharp back pain which lasted hours and occurred most days of the week. See December 2010 VA spine examination report. The Veteran also reported that his back pain was so severe at times that it sent him to his knees. See SSA records at 12. Additionally, a private vocational specialist explained that the Veteran's feet and back conditions would not be conducive to climbing into and out of large trucks and sitting for long periods, as required by his occupation. See November 2015 report at 4. The Veteran's PTSD also caused difficulty concentrating and interpersonal problems, making him uneasy around people and limiting his ability to develop relationships. See April 2009 VA psychiatric examination report. The Veteran's reported sleep difficulties resulting from his PTSD further interfered with his employability due to daytime fatigue and lack of attention. See November 2015 report at 4. This was confirmed by the Veteran's wife, who testified that between 2008 and 2013 she did most of the couple's driving because the Veteran became easily distracted due to his PTSD and fatigue. See DRO Hearing Tr. at 16. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the statements from the Veteran and his wife, VA examination reports of record, and November 2015 vocational report to be probative as to the Veteran's functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected PTSD, bilateral flat feet, bilateral knee disabilities, and lumbar DJD prevented him from obtaining and maintaining substantially gainful employment. Accordingly, the criteria for TDIU on an extraschedular basis have been met for the period from February 21, 2008 to March 29, 2013. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). However, the evidence does not support a TDIU rating prior to February 21, 2008. As noted above, the Veteran last worked on February 20, 2008. See SSA records at 14, 15. The Veteran has not alleged, and the record does not show, that his employment was less than substantially gainful, required reasonable accomodation, or that the Veteran was otherwise unable to obtain or retain substantially gainful employment prior to February 21, 2008. The Board notes that in November 2016 the AOJ asked the Veteran to provide additional information about the nature of his last five years of employment. See November 2016 development letter. The Veteran declined to respond. Consequently, the Board is limited to the evidence of record on this matter. Thus, the Veteran retained full-time employment until he stopped working on February 20, 2008. Further, the evidence does not show that the Veteran's service-connected disabilities resulted in an inability to secure and follow a substantially gainful occupation prior to February 21, 2008. Accordingly, the Veteran is not entitled to a TDIU rating prior to February 21, 2008. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.