Citation Nr: 22037367 Decision Date: 06/29/22 Archive Date: 06/29/22 DOCKET NO. 15-22 267 DATE: June 29, 2022 ORDER Entitlement to a total disability rating based on unemployability on an extraschedular basis from June 24, 2011, is granted. FINDING OF FACT Although he does not meet the percentage criteria for a schedular TDIU evaluation, the probative evidence of record establishes that since June 24, 2011, the Veteran's service-connected disabilities have substantially interfered with his employment, and he cannot secure or follow a substantially gainful occupation consistent with his education and occupational experience, without regard to nonservice-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on unemployability from June 24, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 3.400, 4.1, 4.3 4.16 (b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1984 to February 1994. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in October 2018. The transcript is in the record. Most recently the issue was remanded by the Board in September 2021. This decision also granted entitlement to TDIU from October 24, 2018. 1. Entitlement to a total disability rating based on unemployability from June 24, 2011 The Veteran and his representative assert the Veteran is entitled to TDIU since June 24, 2011, as the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. The Veteran was granted TDIU on a schedular basis from October 18, 2018, as this was the date he met the schedular criteria. Entitlement to a TDIU prior to October 14, 2018, was remanded for extraschedular consideration in September 2021. In April 2022 the Director of Compensation of Pension denied entitlement to extraschedular for TDIU. Applicable regulations permit extraschedular ratings where the schedular ratings are inadequate to compensate a Veteran for a loss in his ability to earn money due to his service-connected disabilities. See 38 C.F.R. § 3.321 (b)(1). Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. The Board itself cannot assign an extraschedular rating in the first instance. See Thun v. Shinseki, 572 F.3d 1366 (2009). However, if the Director, Compensation and Pension Service (the Director), has already determined that an extraschedular evaluation is not warranted, then the Board may assign an extraschedular TDIU. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. at 96-7 (1996). The Board will turn briefly now to discuss its understanding of key terms used in this decision. Of particular concern in this case is the phrase "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that in determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to: (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 (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and, (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, "By discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." See Ray, 31 Vet. App. at 62. Similarly, in Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), the Court held that if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of performing "sedentary work," then it must define that term considering the specific facts of each case, including a particular Veteran's work history, education, and training. The Board notes that since "sedentary" is defined as "requiring or marked by much sitting (a sedentary desk job)," it interprets this definition to mean that the Veteran could have worked in a job where he primarily would sit down. See WEBSTER'S II NEW COLLEGE DICTIONARY (1999). The record indicates the Veteran last worked full-time in February 2005 as a correctional officer and that he has worked part-time as a minister since approximately 2000. As a minister the Veteran works two to three hours a week and makes approximately $200 a month, which is well below the poverty line. The Veteran completed two years of college and completed an automotive technician course. Though before the period on appeal, a January 2005 VA examination report indicated the Veteran was unemployable due to his back pain. The examiner opined that the Veteran's back pain was sufficiently severe as to prevent the Veteran from any employment. In July 2013 correspondence, the Veteran reported severe pain in his lower extremities and that if he walks one day then he would need two to three days to recover. The Veteran further reported constant back pain that causes him to be unable to walk and causes pain while sitting. The Veteran endorsed pain bending, climbing, reaching, and typing. This pain causes him mental an emotional impairment. A March 2015 medical note indicates the Veteran is unemployable due to severe back pain and knee pain. At a July 2016 VA examination the Veteran stated he loses sleep due to his back pain. At the October 2018 Board hearing the Veteran testified that he was unable to continue his theological studies because he was unable to concentrate due to his back disability. A vocational assessment report from July 2021 indicated the Veteran's service connected back condition and bilateral lower extremity radiculopathy rendered him unable to work since at least June 2011. The examiner, who is a Certified Rehabilitation Counselor, highlighted evidence from the Veteran's medical file which indicated the Veteran's bilateral lower extremity radiculopathy impaired the Veteran's gait and caused him severe pain and that the Veteran's back condition caused him pain and sitting upright exacerbated this pain. Based on a review of the evidence, the vocational expert opined the Veteran would be unable to perform the full range of exertional requirements of physical work or even sedentary work since June 2011. The Board concludes that the extraschedular TDIU is proper here. The Board notes that throughout the appeal period there are notations the Veteran's back and leg disabilities severely impair his ability to do any physical work, and the Veteran reported that his pain caused him to lose sleep and impaired his concentration. Further, the July 2021 vocational rehabilitation report opines that the Veteran's back and bilateral lower extremity disabilities would preclude both sedentary and physical work. The July 2021 report/opinion is the most persuasive opinion of record. The Board notes the negative April 2022 decision from the Director was based on the conclusion that there is no exceptional or unusual disability picture with factors such as marked interference with employment or frequent periods of hospitalization. The Compensation Service's decision is, at this point, nonbinding on the Board. The Board reviews the entirety of the Director's decision de novo, and is thus authorized to assign an extraschedular rating when appropriate. See, e.g., Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). The Board acknowledges the Veteran was working part-time as a minister during this time; however, the Veteran's time commitment and pay do not qualify as substantially gainful employment. In view of the totality of the evidence, and resolving all doubt in the Veteran's favor, the board finds that it is unlikely the Veteran would be able to obtain and maintain substantially gainful employment. TDIU from June 24, 2011 is granted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.