Citation Nr: 22040192 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 17-30 828 DATE: July 13, 2022 ORDER A total rating based on individual unemployability (TDIU) on an extraschedular basis is granted, effective August 1, 2013. REMANDED Entitlement to increased ratings for left elbow disabilities is remanded. FINDING OF FACT From August 1, 2013, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From August 1, 2013 until November 20, 2013, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 2001 to April 2001 and from December 2003 to October 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel board hearing in March 2020 in Portland, Oregon. A transcript is of record. This matter was previously before the Board in February 2021 when it was remanded for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matter was referred to the Director of the Compensation Service. 1. Entitlement to TDIU on an extraschedular basis prior to November 21, 2013. The Veteran asserts entitlement to TDIU based on an extraschedular basis. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will address the Veteran's entitlement to an extraschedular TDIU prior to November 21, 2013 as he receives TDIU from that date onward. Prior to November 21, 2013, the Veteran received a 50 percent rating for other specified trauma-related disorder, a 20 percent rating for left elbow degenerative joint disease, and a 10 percent rating for degenerative changes of the lumbar spine. His combined rating was 60 percent with multiple service-connected disabilities. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims TDIU, the Board referred the TDIU matter to the Director, Compensation Service, for extraschedular consideration in its February 2021 remand. An April 2021 discussion recommended against granting TDIU on an extraschedular basis. In April 2021, the Director concluded that entitlement to extraschedular TDIU was not warranted as the Veteran's service-connected disabilities would not prevent the ability to obtain or maintain employment. While the Director found entitlement was not warranted, the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran's VA Form 21-8940 shows he last worked full-time on August 1, 2013. He has previous employment as a truck driver and as a laborer. He has a high school education. He testified at that Board hearing that he participated in trade school for heavy equipment operation and attempted some vocational rehabilitation for computer training but was unable to complete it. A March 2014 examination reported the effects from his service-connected wrist and back disabilities. He would have difficulty using wrenches and lifting with his left arm. Additionally, he would have difficulty driving and in any other position that required the full use of both arms. His back impacted his ability to drive as he could only drive for short periods before he would have to stop and stretch. He also had difficulty with lifting and bending. His September 2014 examination documented the symptoms of his service-connected psychiatric disorder. Occupational and social impairment with reduced reliability and productivity was shown. His symptoms included chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He testified at the Board hearing regarding the effects his service-connected disabilities have on his ability to maintain gainful employment. His service-connected elbow and back disabilities made driving difficult. His acquired psychiatric disorder caused increased stress with driving in traffic. He attempted vocational rehabilitation with computers but was unable to complete the training. Additionally, he explained that his acquired psychiatric disorders affected his social interactions in workplace environments. After review of the competent and probative evidence, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) from August 1, 2013 until November 20, 2013. The Board acknowledges the Veteran's testimony that he has been unemployed since 2012. However, the Board finds the information the Veteran provided for his VA Form 21-8940 to be more credible as it is more consistent with other, relevant evidence of record. In this regard, there are multiple entries that indicate his last date of employment was August 1, 2013. Also, a VA Form 21-4192 shows the Veteran was employed in June/July 2013. Additionally, the Board acknowledges the Director's findings that he would not be prevented from employment. However, due to the Veteran's service-connected elbow and back disabilities, he was prevented from maintaining any physical employment as he is unable to perform tasks that require pushing, pulling, lifting, or carrying during this period on appeal. He could not maintain employment as a truck driver because of his difficulty steering and the need for frequent breaks to stop and stretch. His service-connected acquired psychiatric disorder also affected his ability to drive in traffic. It affected him in social and work settings because of the increased stress of being around others. The Board acknowledges that he has some vocational rehabilitation training regarding computers. However, even if he had experience in such a position, his service-connected left elbow would cause significant impairment with typing and other workplace tasks, such as those involving pushing, pulling, lifting, or carrying. His psychiatric disorder would likely require him to be in a socially isolated role, which there is no indication from the record that the Veteran has such experience. The Board acknowledges the examinations noting that the Veteran would be able to perform sedentary employment. However, there is no indication from the claims file that the Veteran has any experience in a sedentary position particularly experience in a role that would not require full use of his left arm. Therefore, when resolving reasonable doubt in favor of the Veteran, entitlement to an extraschedular TDIU is granted from August 1, 2013 until November 20, 2013 based on the Veteran's service-connected disabilities. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16(b). REASONS FOR REMAND Entitlement to increased ratings for left elbow disabilities is remanded. The Veteran asserts entitlement to increased ratings for his left elbow disabilities. He receives ratings for degenerative joint disease of the left elbow and flexion impairment, and a noncompensable rating for extension impairment. 38 C.F.R. § 4.71a, DCs 5010, 5206-07, 5213. A June 2021 rating decision increased his 20 percent rating for left elbow impaired flexion to 40 percent, effective June 5, 2021. An examination was performed in June 2021. The Veteran stated that he avoids activities (heavy lifting), so he does not have flare-ups. He further explained he avoids using his left elbow so he can avoid flare-ups. Based on this information, the examiner reported the Veteran did not have flare-ups and therefore, the evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare-ups. In light of the inconsistencies in the June 2021 examination regarding flare-ups, the Board finds that an additional examination is warranted. The Board acknowledges the examiner found the Veteran did not have flare-ups. However, the Veteran avoids activities, so he does not have flare-ups in his elbow. This suggests that the Veteran does have flare-ups as he avoids using his elbow in situations where he can have increased pain. As such, an additional examination is warranted to fully address the Veteran's claim for increased ratings for his left elbow. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any records cannot be obtained, notify the Veteran and his representative of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completing #1, schedule an examination to assess the current nature and severity of his service-connected left elbow disability. The examiner is to review the relevant evidence in the claims file, to include a copy of this Remand. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected elbow disability, and how he characterizes any additional functional loss during a flare-up. If the Veteran describes experiencing flare-ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion is additionally limited for extension is limited to 45 degrees or more. Please explain why or why not. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.