Citation Nr: 22018979 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 08-34 101A DATE: March 31, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), on an extraschedular basis, is granted. FINDING OF FACT The appellant's service-connected thoracolumbar disability and his accompanying radiculopathy with antalgic gait prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Navy from November 1964 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to TDIU. This decision was appealed in a notice of disagreement (NOD) received by VA in August 2012. A Statement of the Case (SOC) was issued by VA in December 2012. VA received the appellant's Substantive Appeal (Form 9) in February 2013, perfecting the appeal. The appellant appeared before a different Veterans Law Judge than the undersigned for hearings in December 2015 and August 2018. Transcripts of those hearings are of record. In October 2020, prior to the most recent Board decision issued in December 2020, the appellant was notified that the Veterans Law Judge who presided at his December 2015 and August 2018 hearings was no longer employed by the Board. The appellant was afforded the opportunity for another hearing before the Veterans Law Judge who would decide his case; however, he failed to respond to that letter with the 30-day allotted time-period. As such, it was presumed that he had waived that hearing. Following the Board's most recent decision in December 2020, after the ordered development was completed and a subsequent Supplemental Statement of the Case (SSOC) was issued, the appellant did request another hearing before a Veterans Law Judge on the matter. The appellant appeared before the undersigned Veterans Law Judge for a hearing in November 2021. A transcript of that hearing is of record. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU), on an extraschedular basis, is granted. The appellant contends that his service-connected disabilities prevent him from obtaining or maintaining gainful employment. At his most recent hearing in November 2021, the appellant indicated that he had worked as a boat mechanic for 45 years and then had worked as a service writer at a boat dealership. He stated that he had stopped working because he could no longer perform his duties, which included being able to get in and out of the boats he was working on, due to his service-connected back disability and radiculopathy. He claims these cause shooting pain and numbness in his legs that make walking difficult, require frequently changing from sitting to standing, and require the use of a cane. After a review of the evidence of record, the Board finds that the approximate balance of the evidence shows that the appellant at least as likely as not is unable to obtain or maintain gainful employment due to his service-connected disabilities. As such, granting the appellant the benefit of the doubt, the Board concludes that the criteria from entitlement to TDIU are met. 38 C.F.R. §§ 4.3, 4.15, 4.16. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 and follow a 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). Nevertheless, 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 disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rating boards should refer to the Director, Compensation Service 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), for extraschedular consideration. A veteran's service-connected disabilities and their functional impacts, their employment history, their educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In this case, the appellant is service connected for residuals of a herniated nucleus pulposus (thoracolumbar disability), radiculopathy of the left lower extremity affecting the sciatic nerve and radiculopathy of the right lower extremity affecting the external popliteal (common peroneal) nerve. The appellant's thoracolumbar disability is rated 20 percent disabling under Diagnostic Code 5243. His left lower extremity radiculopathy is rated 10 percent disabling. His right lower extremity radiculopathy is rated 10 percent disabling. His total disability rating has been 40 percent from August 1, 2011. As the appellant does not meet the schedular criteria, the Board finds that entitlement to TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). However, as previously noted, 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 disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). As such, the claim has been considered on an extraschedular basis. The Board previously remanded this claim in December 2020 because the Board cannot grant TDIU on an extraschedular basis in the first instance. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because it has no power to do so). VA must do what was done in the previous remand and order the RO to submit the claim to the Director, Compensation Service for an initial adjudication of entitlement to TDIU on an extraschedular basis. The Director, Compensation Service, issued a decision in January 2021 recommending against a grant of TDIU on an extraschedular basis. The decision discussed a December 2014 VA medical opinion which showed the appellant had difficulty with sitting or standing for long periods and a February 2020 VA examination which noted the appellant would require frequent position changes to alleviate pain caused by his service-connected disabilities. Notably, the rest of the February 2020 VA medical opinion was not discussed, to include the portion that opined that the appellant's disabilities would reduce his work efficiency to the point that, even in sedentary tasks, the vast majority of employers would find his ability to perform his work unacceptable. The examiner went on to note that "finding a work place and work activity that could accommodate the Veteran's conditions and symptoms is unlikely." The January 2021 decision by the Director, Compensation Service determined the appellant would be capable of working in a sedentary environment with the help of modern technology such as a sit/stand desk. The Director's decision also determined that jobs in the American workplace are generally less strenuous and that there "are many jobs in the workplace that require only light activity and for which a person with a high school education would be capable of performing." The Board finds the Director's January 2021 opinion inadequate, as it failed to discuss relevant portions of the February 2020 VA medical opinion which were highly favorable to the appellant's claim. To that end, the Board has afforded significant probative weight to the February 2020 VA medical opinion. The examiner there took into account the appellant's work history, the type of work he was accustomed to doing, and the types of tasks employees are generally asked to perform in the workplace. The examiner noted, rightly, that while the appellant would maybe be able to obtain work if appropriate accommodations were made, his disabilities would have such an impact on his work efficiency that he would not be able to maintain adequate performance and likely would not be able to maintain employment in general outside of some kind of protected environment. The examiner also noted the appellant's use of a cane and his antalgic gait and noted that his being a significant fall risk would also likely impact his ability to obtain or maintain employment. (Continued on the next page) Considering this, the Board finds that the approximate balance of the evidence shows that the appellant would not likely be able to obtain or maintain gainful employment due to his service-connected disabilities. The approximate balance of the evidence shows that his service-connected disabilities might not prevent him from obtaining employment, but that they would inevitably cause significant underperformance in work-related tasks that would likely lead to termination outside a protected environment. As such, granting the appellant the benefit of the doubt, the Board concludes that the criteria for entitlement to TDIU, on an extraschedular basis, are met for this claim. 38 C.F.R. §§ 4.3, 4.15, 4.16. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.