Citation Nr: 22017509 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 14-29 310 DATE: March 25, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis prior to October 21, 2008, is denied. FINDING OF FACT Prior to October 21, 2008, the Veteran's service-connected disabilities did not meet the schedular rating requirements for a TDIU, and they did not render her incapable of obtaining and maintaining substantially gainful employment to otherwise warrant granting this benefit alternatively on an extra-schedular basis. CONCLUSION OF LAW Prior to October 21, 2008, the criteria are not met for entitlement to a TDIU on a schedular or extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1978. This appeal to this Board of Veterans' Appeals (Board) is from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). By way of relevant procedural history, a May 2021 rating decision granted the Veteran service connection for bronchitis and rated it as 100-percent disabling retroactively effective from October 21, 2008. That decision also granted entitlement to Dependents' Educational Assistance (DEA) as of that same effective date as well as special monthly compensation (SMC) based on the housebound (HB) criteria being met retroactively effective as of June 5, 2009. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where a 100 percent schedular rating was awarded for the same period). That said, the Board is mindful of the Court's holdings in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), but SMC already has been granted at the HB rate. As such, the issue of entitlement to a TDIU from October 21, 2008, onwards is moot since the maximum benefits available already have been granted from that date onwards. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). The Board, therefore, need only consider entitlement to this requested TDIU benefit prior to that delimiting date In October 2021, the Board remanded this claim back to the local RO, so back to the AOJ, so it could be referred to the Director of the Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). There since has been the required compliance, certainly the acceptable substantial compliance, with that remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a TDIU on an extra-schedular basis prior to October 21, 2008 VA will grant a TDIU when the evidence shows the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with her education and occupational experience by reason of her service-connected disabilities. Neither her nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a). For the period still under review, from July 10, 2002, to October 20, 2008, the Veteran's service-connected disabilities did not meet the schedular rating requirements for a TDIU. For this earlier period, her only service-connected disability was headaches, rated as 30-percent disabling, so not the required 60 percent or higher rating. However, even if, as here, the Veteran's service-connected disability fails to meet the applicable percentage standards set forth in § 4.16(a), the Board should consider whether to refer the claim to the Director of the Compensation Service for extra-schedular TDIU consideration under the special provisions of § 4.16(b). But, at most, the Board can consider whether this referral is warranted, not instead grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). But, by the same token, consider also that the Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the C&P Service Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). In October 2021, to this end, the Board remanded this issue of entitlement to a TDIU on an extra-schedular basis prior to October 21, 2008, so this claim could be referred to the Director of the Compensation Service for this special consideration. The record shows the RO accordingly referred this claim to the Director of the Compensation Service. In January 2022, the Director issued an Advisory Opinion denying a TDIU on an extra-schedular basis prior to October 21, 2008. The Director found that, prior to October 21, 2008, the Veteran's service-connected headaches did not preclude her from obtaining or maintaining substantially gainful employment, so this claim is back before this Board. On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued a panel decision in Ray v. Wilkie, 31 Vet. App. 58 (2019), which: 1) addressed the effect of the Board's referral of a case for extra-schedular consideration of a TDIU under 38 C.F.R. § 4.16(b) when the Board later reviews the Director's decision not to award an extra-schedular total disability rating; and 2) formulated a definition for "substantially gainful employment" under § 4.16(b). Here were the main takeaways: The Board's determination to refer a case for extra-schedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." "Substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U. S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disability(ies), alone, is of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19. The CAVC also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. §§ 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the CAVC further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he/she can perform the physical and mental acts required by employment. Moreover, for entitlement to an extra-schedular TDIU specifically (as is the case here), the Veteran's service-connected disability(ies) must present an exceptional or unusual disability picture such that the symptomatology associated with the disability(ies), alone or in combination, is not contemplated within the relevant rating criteria. Here, after considering the relevant evidence of record, the Board agrees with the Director, so also finds, that a TDIU on an extra-schedular basis prior to October 21, 2008, is not warranted because there is not the required confirmation the Veteran was unemployable if only considering the functional effects of her service-connected headaches. Indeed, to the contrary, prior to October 21, 2008, the most persuasive evidence is against any notion that she was unable to obtain or maintain substantially gainful employment owing only to her service-connected headaches. In a January 2005 private treatment record assessing the Veteran's disabilities, thus, including her headaches and during the time at issue before October 21, 2008, the examiner indicated the Veteran could continue working light duty jobs albeit with restrictions of no lifting more than 10 pounds or overhead work. Even if that could be interpreted as a reasonable accommodation or something similar or meant that, for all intents and purposes, she could only do sedentary work, however that term is defined, it still is not shown those physical restrictions had anything to do with her service-connected headaches. Additionally, in a December 2008 statement, she explained that she had lost her job due a back condition. Thus, as the most probative (competent and credible) evidence is against finding that, prior to October 21, 2008, the Veteran was unable to secure or follow a substantially gainful occupation solely due to her service-connected headaches, this benefit cannot be granted for this earlier period at issue. Moreover, there is not an "approximate" (meaning nearly equal) balance of evidence for versus against this claim, so the benefit-of-the-doubt doctrine does not apply. See, e.g., Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.