Citation Nr: 22040105 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 13-13 314 DATE: July 13, 2022 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis prior to September 17, 2015, is granted from January 2011, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, prior to September 17, 2015, his service-connected disabilities precluded him from securing and following a substantially gainful occupation after he was last employed in January 2011. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to September 17, 2015, are met from January 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to February 1986. During the current appeal, and specifically in January 2022, the Board of Veterans' Appeals (Board) remanded the Veteran's TDIU claim for referral to VA's Director of Compensation Services for extraschedular consideration. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id.; 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding 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(s) at issue. Ray, 31 Vet. App. at 73. 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. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. 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 workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, and if there are two or more 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). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16 (b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Furthermore, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. Faust v. West, 13 Vet. App. 342 (2000). Additionally, marginal employment may also be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. This includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Consideration shall be given in all claims to the nature of the employment and the reason for termination. In the current appeal, the Veteran contends that he has been unable to secure and follow a substantial gainful occupation due to his service-connected disabilities prior to September 17, 2015. Throughout the period on appeal, he has been service-connected for peripheral neuropathy of both lower extremities at 20 percent each; diabetes mellitus at 20 percent; lumbar spine osteoarthritis at 20 percent; and lichenoid dermatitis, bilateral cataracts, and bilateral hearing loss, each of which are noncompensably disabling. Thus, he did not meet the requirements for a TDIU on a schedular basis at any point during the appeal period, as his combined compensation rating was 60 percent. In January 2022, the Board remanded the claim for a TDIU prior to September 17, 2015, on an extraschedular basis to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service. In a memorandum dated January 26, 2022, the VA Executive Director of Compensation Service determined that the evidence failed to support the contention that any of the Veteran's service-connected disabilities, or a combination of the effects of those disabilities, prevented him from securing and following a substantial gainful occupation prior to September 17, 2015. As the issue of an extraschedular rating is no longer in the first instance, the Board now has jurisdiction to adjudicate it on the merits. While the Board appreciates the Director's opinion, the Board respectfully disagrees with that determination. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities prior to September 17, 2015, the Board finds that the evidence warrants the conclusion that he was indeed unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to September 17, 2015. Thus, a TDIU is warranted on an extraschedular basis. The Veteran submitted an application for TDIU in December 2016. Therein, he reported last having worked in January 2011 as a driver/site manager for North Florida Staffing, a position he had held since October 2007. Prior to working in this position, he also reported having worked as a truck driver with another company for over 10 years in his application for TDIU. The Veteran reported earnings with his prior employer which exceeded the 2010 Poverty Threshold for a married person over the age of 65 ($13,194), as defined by the U.S. Census Bureau. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, having earned an annual income above the poverty threshold in this position, the Veteran had substantially gainful employment prior to January 2011. With regard to the question of whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service connected disabilities after leaving substantially gainful employment during this time period, the Board finds the June 2020 private opinion written by F.F., CRC, to be the most probative evidence of record. This opinion is based on a thorough review of the Veteran's medical and employment history, which he noted in great detail in his opinion letter. F.F. concluded that, prior to September 2015, the Veteran's inability to sustain pace, concentration, and production, coupled with his physical inability to engage in even sedentary level tasks, due his service-connected disabilities, prevented him from securing and following substantially gainful employment. Although this opinion was stated as favoring a TDIU from November 2012, a November 2017 private vocational assessment of record completed by T.L.T., CRC, CDMS, CCM, ABVE/D, clearly states that these are the same limitations that led to the Veteran having to stop working altogether in January 2011. In light of the above, the record reflects that, following the Veteran's termination of employment in January 2011, his service-connected disabilities have been severely limiting such that they rendered him unable to secure and follow a substantially gainful occupation prior to September 17, 2015. The Board is heavily persuaded by the extremely thorough June 2020 and November 2017 private providers' reports which considered the combined effects of all the Veteran's service-connected disabilities on his ability to perform all types of work, including sedentary work, and rendered convincing opinions that his service-connected disabilities, in total, have rendered him unable to follow a substantially gainful occupation, considering his background, education, and training. As such, the Board finds that, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered him unable to follow a substantially gainful occupation prior to September 17, 2015. The Board resolves (CONTINUED ON NEXT PAGE) any reasonable doubt in the Veteran's behalf and finds that a TDIU on an extraschedular basis prior to September 17, 2015, is warranted from the time his employment terminated in January 2011. This claim is, thus, granted to this extent. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.