Citation Nr: 22014168 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-52 715 DATE: March 11, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to March 3, 2018, is granted. FINDINGS OF FACT 1. Prior to March 3, 2018, the Veteran was service-connected degenerative disc disease of the lumbar spine, rated as 20 percent disabling; degenerative joint disease and strain of the right and left knees, rated as 10 percent disabling each; left foot first metatarsal, fracture of the right ankle, left great toe hallux rigidus and left calcaneal heal spur, rated as 10 percent disabling each; and bilateral hearing loss, episodic benign positional vertigo, allergic rhinitis and right ankle scar, rated as non compensable. His combined rating was 60 percent. 2. Prior to March 3, 2018, it is at least as likely as not that the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for a finding of a TDIU under 38 C.F.R. 4.16 (b) were met prior to March 3, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May to November 1964; August 2002 to June 2003 and from March 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. Entitlement to a TDIU, prior to March 3, 2018, The Veteran contends that he is entitled to an extraschedular TDIU, prior to March 3, 2018, because his service-connected disabilities precluded him from maintaining gainful employment. See February 2016 VA Form 21-8940. For the reasons explained below, the Board finds that entitlement to an extraschedular TDIU, prior to March 3, 2018, is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 at 60 percent or more, and that, 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). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). Prior to March 3, 2018, the Veteran was service-connected degenerative disc disease of the lumbar spine, rated as 20 percent disabling; degenerative joint disease and strain of the right and left knees, rated as 10 percent disabling each; left foot first metatarsal, fracture of the right ankle, left great toe hallux rigidus and left calcaneal heal spur, rated as 10 percent disabling each; and bilateral hearing loss, episodic benign positional vertigo, allergic rhinitis and right ankle scar, rated as non compensable. His combined rating was 60 percent. Therefore, the Veteran did not meet the requirements for TDIU under 38 C.F.R. § 4.16 (a) prior to March 3, 2018. In its December 2021 remand, the Board referred the Veteran's claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in a January 2022 decision and determined that individual unemployability benefits were not warranted. Consequently, as the claim has been denied on an extraschedular basis by the Chief of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). The Veteran reported on his VA Form 21-8940 that he last worked as an active duty soldier in 2007. He also reported that his highest level of education achieved was a high school diploma. He testified at the Board hearing that after he returned from deployment, he unsuccessfully attempted to return to his previous commercial plumbing job. See Board Hearing Transcript, p. 9. However, due to service-connected vertigo, he could no longer climb ladders, which was one of the job requirements. He also testified that his knees, feet and back caused him pain and he found it difficult to walk, sit or stand for extended periods of time. Id. at 12-13. Medical evidence, including VA examination reports and treatment records, corroborate the Veteran's reports of functional limitations. Based on the foregoing, the Board finds that entitlement to TDIU, prior to March 3, 2018, is warranted. The Board credits the evidence which supports the fact that the Veteran was unable to walk, sit or stand for extended periods of time or lift heavy items due to his service-connected back, knee, foot and ankle disabilities. These limitations would exclude him from most physically laborious positions. The Board finds that, prior to March 3, 2018, the Veteran was unlikely to be able to be able to sustain gainful employment in a sedentary position for 2 main reasons. First, the majority of the Veteran's employment history was in physically laborious positions. In his own words, he has never worked a "desk job." It is not impossible for him to become versed in another position; however, the Board is hard pressed to find one which he would qualify. Second, most sedentary positions would require the Veteran to sit for extended periods in front of a computer or similar setup. There is credible evidence that due to the Veteran's knee and back disabilities, he cannot sit for extended periods of time without episodes of pain. (Continued on next page.) Based upon the medical treatment history, the Veteran's employment history, and his level of education, the Veteran has been unemployable, prior to March 3, 2018, as a result of his service-connected back, knee, ankle and foot disabilities. As such the Board finds that the evidence adequately supports the conclusion that entitlement to a TDIU on an extra-schedular basis is warranted. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.