Citation Nr: 22015974 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 11-10 729 DATE: March 20, 2022 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis for the period prior to August 6, 2001, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1988 to May 1992; he has been 100 percent disabled based on unemployability since August 2001. 2. Prior to August 6, 2001, the Veteran's service-connected disability did not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW Prior to August 6, 2001, the criteria for a TDIU were not met. 38 U.S.C. §§ 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2021, the Board remanded the issue to obtain an Administrative Review from the Director, Compensation Service to address TDIU on an extraschedular basis. That review is now associated with the file. The Veteran's appeal for a TDIU relates back to a claim for compensation for a low back disability filed in January 1994, and will be treated as such for the purposes of this decision. There have been multiple Board decisions and remands in the interim, as well as a December 2009 Court vacate of an August 2008 Board decision on a matter of compensation for the service-connected low back disability. The Veteran had requested a Board hearing in December 2011 but cancelled that request in January 2013. Historically, a TDIU was granted from August 6, 2001, to December 11, 2001. The claim for TDIU on an extraschedular basis was considered under 38 C.F.R. § 4.16(b) in a September 2021 Administrative Decision in which the Director of Compensation Service found that entitlement to TDIU on an extraschedular basis was warranted from December 12, 2001. The Director of Compensation Service considered the entire time on appeal, including prior to August 2001, and only found extraschedular was warranted from December 12, 2001. Thus, the issue before the Board is whether an extraschedular rating is warranted prior to August 6, 2001. A total disability rating 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 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. Where a veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). While the Veteran has been considered totally unemployable since August 2001, consideration is needed to assess whether his service-connected disabilities rendered him unemployable under 38 C.F.R. § 4.16(b) prior to that time. As discussed above, generally, to be eligible for TDIU, a percentage threshold must be met. Prior to August 6, 2001, he was service connected for a low back disability at 20 percent. The combined rating was 20 percent. Thus, he did not meet the requirements of 38 C.F.R. § 4.16(a). In this case, the claim for TDIU was considered under 38 C.F.R. § 4.16 (b) in a September 2021 Administrative Decision Administrative Decision in which the Director of Compensation Service found that entitlement to TDIU on an extraschedular basis was warranted from December 12, 2001. Notwithstanding the opinion provided by the Director of Compensation Service, the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). In assessing whether an extraschedular TDIU is warranted, the determination must be supported by a "full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue." 38 C.F.R. § 4.16(b). Moreover, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient. Rather, the Board must determine whether a veteran's combined service-connected disabilities, despite failing to meet the schedular criteria, inhibited his or her capacity to perform the physical and mental acts required for employment. In this case, the evidence does not establish that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disability prior to August 6, 2001. Turning to the evidence, a March 1994 VA examiner noted that the Veteran worked in a feed mill until January 1994 when he was laid off due to chronic low back problems; however, the examiner did not find that the Veteran was unemployable. A July 1999 statement from the Veteran's treating doctor noted that the Veteran was unable to work due to his back for an indefinite period. In a December 1999 statement, the same doctor noted that the Veteran had low back pain and was unable to work. In an October 1999 VA examination, the Veteran reported that he worked in a shipyard/oil field and that he had not worked since July 1999. He stated that he had been working off and on for the past two years because of his back pain and lost a job because of his back pain. He was diagnosed with degenerative disc disease with chronic pain syndrome. The Veteran reported daily pain in his back flare-ups once a month not usually precipitated by anything. He stated that when his back hurt, he could not stand, sit, or lay down because of the pain. He noted that he no longer played basketball or sports because of back pain; however, the examiner did not find that the Veteran was unemployable. In a March 2000 VA 21-527 Income-Net Worth and Employment Statement, the Veteran reported that he became too disabled to work on August 2, 1999. He previously worked as a welder and laborer and had one year of a college education. In an August 2001 VA neurosurgery note it was noted that for the past six months the Veteran's back pain had been severe and fairly constant, and he had been unable to hold a job since. Additionally, in an April 2005 neurosurgery note it was noted that he has been physically disabled on account of his spine and his disability was present in August 2001 when he was first seen and had remained uninterruptedly disabled through the present time. The date of August 2001 is the date that TDIU became effective. The Social Security Administration (SSA) determined in a March 2003 decision that the Veteran was disabled for purposes of eligibility for SSA benefits. In so doing, SSA found that he had been disabled since August 25, 2000, based on a combination of impairments including lumbar disc disease, deep vein thrombosis (DVT) and polysubstance abuse in remission. It was determined that as a result of his disabilities he had the residual functional capacity to perform less than sedentary work. The SSA decision opined that as a result of his disabilities, he was unable to perform his past relevant work and his skills did not transfer to other occupations. The decision concluded that there were no jobs existing in significant numbers in the national economy that the Veteran would be able to perform. Based on the above, the evidence does not support the claim that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disability prior to August 6, 2001. The evidence shows that the low back disability resulted in pain, difficulty standing, sitting, or lying down during flare-ups. While the October 1999 VA examiner identified the functional impact resulting from the service-connected low back disability, he did not find that the Veteran was unemployable. Unemployability is more than an inability to be employed in a previous job. Rather, it is the inability to secure or follow a substantially gainful occupation. Although the October 1999 VA examiner observed the Veteran had been working off and on for the past two years because of his back pain and he lost a job because of his back pain, that in and of itself does not establish that he is unemployable for a substantially gainful occupation. Further, while the Veteran's treating doctor noted, in June and December 1999 statements, that the Veteran had low back pain and was unable to work, he did not find that the Veteran was unemployable. The Board further notes that while findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's own framework for determining entitlement to TDIU. SSA bases disability on a claimant's residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. Therefore, based on the above, the medical evidence does not support a TDIU on an extraschedular basis prior to August 2001. The Board has considered lay statement submitted by the Veteran regarding his capacity to work prior to August 6, 2001. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's unemployability prior to August 6, 2001, has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran's service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.