Citation Nr: 22048705 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 18-16 753 DATE: August 26, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 18, 2018, to September 23, 2019, and after January 30, 2021, due to service-connected disabilities is granted. REMAND Entitlement to a TDIU prior to December 18, 2018, due to service-connected disabilities is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he has been rendered unemployable due to service-connected disabilities from December 18, 2018, to September 23, 2019, and after January 30, 2021. CONCLUSION OF LAW The criteria for TDIU have been met from December 18, 2018, to September 23, 2019, and after January 30, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1976 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2016 and November 2016 rating decisions of the Department of Veteran Affairs (VA), Regional Office (RO). This matter was previously before the Board in February 2019, February 2020, September 2020, and January 2021, at which time it was remanded for additional development. It is now returned to the Board. The Board notes that the Veteran is rated at 100 percent disabling from September 23, 2019, to January 30, 2021, for his psychiatric disability, and that he is already granted special monthly compensation during this time period as well. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001), Bradley v. Peake, 22 Vet. App. 280 (2008). This is considered to be a full grant of benefits on appeal; therefore, the Board will focus on the time periods in which the Veteran satisfied the schedular criteria (December 18, 2018, to September 23, 2019, and after January 30, 2021), and the time period in which he did not (prior to December 18, 2018). TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). In determining whether an appellant is entitled to a total disability rating based on individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). From December 18, 2018, to September 23, 2019, the Veteran was rated at 70 percent disabling, for a psychiatric disability, left knee disability, and right knee disability. The Veteran's left knee and psychiatric disabilities, as they derive from a common etiology, are deemed to be a single rating of 60 percent for these purposes. 38 C.F.R. § 4.16(a). He satisfies the schedular criteria for TDIU for this period. Additionally, after January 30, 2021, the Veteran is rated at 90 percent disabling due to his service-connected disabilities including sleep apnea, a psychiatric disability, a left knee disability, and a right knee disability; the Veteran's sleep apnea is currently rated 50 percent disabling. Accordingly, the schedular requirements for a TDIU are met after January 30, 2021. The question before the Board is whether the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment during these periods. The Veteran's initial TDIU claim form was received at the RO in August 2011. The Veteran reported that he had last worked as a driller assistant/geological tester from March 2007 to January 2008, but he did not list any other employment history. In support of his TDIU claim, the Veteran submitted lay statements from family members and some incomplete documentation from the Social Security Administration (SSA) indicating that the Veteran began receiving supplemental security income in 2010, but that he had the residual functional capacity to perform the full range of sedentary work. The SSA paperwork specifically indicated that the Veteran "has the following severe impairments: Status Post Left Shoulder Rotator Cuff Repair; Diabetes Mellitus with Retinopathy; Ulnar Palsy of the Left Elbow; Bulging Disc; Obesity." The lay statements received in September 2011 from the Veteran's spouse, nephew, and niece indicate that the Veteran suffers from a back disability, a left knee disability, burning pain in his feet, and depression. A March 2019 VA examination for his knees showed that the Veteran is independent with light yard work, feeding, using public transportation, cleaning, cooking, tying his shoes, and buttoning his pants. The examiner also indicated that the Veteran was unable to use stairs, balance on narrow or slippery surfaces, kneel, or crouch but that he was able to perform light sedentary work "without any specific restrictions." A March 2019 VA examination for his sleep apnea shows that the Veteran is unable to drive for more than 2 to 3 hours and that he should avoid working at heights and operating heavy equipment. An April 2019 VA psychiatric examination showed that the Veteran was dealing with symptoms of depressed mood, anxiety, sleep impairment, nightmares, paranoia, and feeling "uneasy when he gets around people" resulting in a decreased work efficiency and ability to perform occupational tasks. A July 2019 VA examination for his knees showed that the Veteran has increased pain and difficulty standing independently. A January 2021 VA examination for his psychiatric disability indicated that he suffered from depressed mood, anxiety, sleep impairment, and mild memory loss resulting in a decreased work efficiency and ability to perform occupational tasks. The most recent August 2021 VA examination for his sleep apnea indicated that it did not impact his ability to work. At an October 2021 VA examination for his knees, the VA examiner stated, "The Veteran has been disabled since 2008. He is unable to work. Working will wear the body out. He is unable to stand, lift, push, or pull items. He has a risk for falls (knees lock up/give out), which poses a safety hazard on the job. He is unable to assist around the home with tasks. The Veteran has been identified as 100% disabled and unemployable." In light of the Veteran's occupational background and consistent functional limitations, and affording him the benefit of the doubt, the Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities, when considered together, are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background during these periods. The Board finds that his bilateral knee disability and sleep apnea would preclude the Veteran from working in any physical employment. The Board finds it persuasive that the October 2021 VA examiner opined that the Veteran was "100% disabled and unemployable," due to his knee disabilities. The examiner reasoned that the Veteran "is unable to stand, lift, push, or pull items. He has a risk for falls (knees lock up/give out), which poses a safety hazard on the job." And although the August 2021 VA examiner opined that his sleep apnea had no functional effect, the March 2019 VA examiner opined that he should not operate heavy machinery. The Board finds these factors probative in concluding that the Veteran is unable to gain or maintain any form of physical employment. The Board additionally finds that the Veteran would be unable to gain or maintain sedentary employment. Although the March 2019 VA examiner opined that the Veteran's service-connected knee disabilities would seemingly allow for sedentary employment with some light restrictions, his psychiatric disability and sleep apnea interfere with his ability to engage in employment that would require him to work with others and follow occupational instructions given his depressed mood, anxiety, sleep impairment, and memory loss. Notably, the April 2019 VA examiner indicated that the Veteran felt "uneasy" around others. Furthermore, the Board references the October 2021 VA examiner's finding that the Veteran is "100% disabled and unemployable" due specifically to his knee disabilitiesthis statement is interpreted to encompass sedentary employment as well. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities would also preclude sedentary employment. As such, resolving all doubt in the Veteran's favor, the evidence is nearly equal as to whether his current service-connected disabilities preclude employment from December 18, 2018, to September 23, 2019, and after January 30, 2021. Entitlement to a TDIU is warranted for these periods. 38 U.S.C. § 5107. To this extent, the claim is granted. REMAND Entitlement to TDIU prior to December 18, 2018, is remanded. Prior to December 18, 2018, the Veteran does not meet the schedular criteria for a TDIU. The Veteran was rated at 40 percent disabling prior to July 23, 2016, and 50 percent disabling prior to December 18, 2018. As such, the Veteran did not satisfy the TDIU criteria for this period. 38 C.F.R. § 4.16; see August 2021 Codesheet. Therefore, the question is whether the Board should refer this claim to the Director of the Compensation Service for extraschedular consideration. During this period, the Veteran was solely service connected for his left and right knee disabilities. However, the Board reiterates the October 2021 VA examination conclusion that the Veteran "has been disabled since 2008. He is unable to work. Working will wear the body out. He is unable to stand, lift, push, or pull items. He has a risk for falls (knees lock up/give out), which poses a safety hazard on the job. He is unable to assist around the home with tasks. The Veteran has been identified as 100% disabled and unemployable." Although this evidence is submitted after January 2021, it suggests that the Veteran may have been unemployable since 2008 from both physical and sedentary employment. The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Furthermore, while the Board notes that the Veteran has several outstanding AMA claims on appeal to the Board which may affect entitlement to TDIU prior to December 18, 2018, the evidence mentioned above is enough to trigger referral to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). This matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, education, and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). . Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Finelli, Christopher 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.