Citation Nr: 23019997 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 14-31 313 DATE: March 31, 2023 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving doubt in favor of the Veteran, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful occupation throughout the period on appeal. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1980 to April 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2021, it was remanded for additional development. Specifically, the RO was instructed to attempt to obtain information associated with the State of North Carolina's determination that the Veteran was too disabled to work. The RO made several attempts to obtain this information and was provided with a negative response from the Eastern Carolina Vocational Center. As such, the Board finds that the agency of original jurisdiction substantially complied with the directives in the March 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU-Legal Criteria A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran's ability to obtain and maintain employment consistent with his or her education and experience. The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Analysis Importantly, the Veteran and his representative have argued that the Veteran should be entitled to TDIU on an extraschedular basis for the period on appeal. For the reasons below, the Board agrees, and the Veteran's claim is granted. As an initial matter, the Veteran's TDIU claim stems from his appeal of the July 2013 rating decision which denied entitlement to a TDIU. The Board notes that the evidence of record indicates that the Veteran's last full-time, gainful, employment ended in February 2010. See June 2021 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. Accordingly, this case turns on whether the Veteran's service-connected disabilities precluded him from obtaining substantially gainful employment consistent with his education and occupational experience for the period on appeal. During the relevant period the Veteran was service connected for left lower extremity sciatica at 20 percent disabling (increased to 40 percent disabling effective October 8, 2018), and intervertebral disc syndrome of the lumbar spine at 20 percent disabling. The Veteran's combined schedular disability rating during this period was 40 percent disabling increased to 50 percent disabling effective October 8, 2018. Thus, for the period on appeal, the Veteran did not meet the schedular requirements for TDIU. 38 C.F.R. § 4.16(a). Although, as indicated above, not meeting the schedular requirements is not an absolute bar to unemployability, as it may be granted on an extraschedular basis. Generally, however, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In the current case, the Veteran's claim was sent for extraschedular consideration in August 2020. In its referral, the RO recommended granting TDIU on an extraschedular basis due to the limitations from the Veteran's service-connected disabilities. In October 2020, the Director of Compensation and Pension (C&P) denied the Veteran extraschedular consideration. This determination was largely due to the Director's contention that the Veteran's service-related conditions did not prevent the Veteran from performing gainful employment. However, the Board does note that the Director indicated that the Veteran's service-connected disabilities caused significant physical limitations with lifting, carrying, bending, squatting, and standing. Considering that the Director of C&P has had an opportunity to evaluate the Veteran's claim for extraschedular consideration in the first instance, and since that consideration was denied, extraschedular consideration is now before the Board for the period on appeal. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the available evidence, the Veteran's June 2021 VA Form 21-8940 recorded that the Veteran was employed full time as a floor tech from June 2010 to December 2010. In his attached resume, the Veteran reported that work as a floor tech involved various janitorial duties including waxing/buffing floors, cleaning carpet, dumping trash, etc. The Veteran reported that he had to leave his employment due to limitations from his service-connected disabilities. The Veteran indicated that he completed 4 years of high school education and no other education or training. During the Veteran's May 2016 Board hearing, he testified that he did janitorial work for approximately 27 years. The Veteran continued that he had to leave work due to an inability to accomplish his tasks any longer. The Veteran testified that he noticed his left knee giving out on him frequently. Further, the Veteran testified that even while he is sitting down for prolonged periods, he experiences lower back pain that rises to the level of a seven or eight out of ten. The Veteran continued that he tried going back to work, but his back and left leg conditions forced him to stop. In a July 2017 Social Security Administration (SSA) decision, the Veteran was granted disability benefits. In the decision, the SSA noted that the Veteran stopped working due to pain in his back and left knee. Further, the Veteran testified during the process that he had fallen approximately 50 times in the previous three years due to his left leg giving out on him. The Veteran was provided with July 2018, October 2018, October 2019, and January 2023 VA Back condition examinations. The examiner's described the functional limitations due to the Veteran's service-connected disabilities as follows: limited to lifting less than 10lbs, no bending or twisting, limited squatting, standing limited to less than 5 minutes with use of cane, frequently needs to change positions, and limitations running or cutting grass. The Veteran provided an April 2021 correspondence from A.N., a nurse practitioner. In this opinion, A.N. noted that the Veteran would have difficulty ambulating long distances; that the Veteran sought treatment from chiropractors, pain management, neurology, and physical therapy for his lower back; and that it would be difficult for the Veteran to engage in any strenuous activity. The Veteran's medical treatment records document that he has had chronic lower back pain throughout the period on appeal with limitations similar to those described in the above VA examinations. Turning to an analysis of the evidence, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis for the period on appeal. The Veteran's work history includes solely employment as janitor and the medical evidence shows that the Veteran has been unable to perform these tasks due to his lower back and left lower extremity radiculopathy disabilities. The Veteran at most has a high school education and his work history involves occupations which would require physical labor, concentration, and the ability to attend normal work hours. The Veteran's lower back and lower left extremity symptoms occur often, interfere with daily activities, and would require the Veteran to miss work and require frequent unscheduled breaks. These functional restrictions have been reflected in the Veteran's above cited VA and private medical records, which are afforded probative weight by the Board. The Board recognizes that the Director of C&P rejected the Veteran's application in an October 2020 determination. The Director's assessment however deemed that the Veteran's disabilities did not prevent him from performing gainful employment. The Board disagrees with the Director's assessment. For the reasons outlined above, given the Veteran's educational background and his professional experience the Board cannot conceive of a substantially gainful occupation where the Veteran's service-connected disabilities would not have posed a significant problem. Finally, and perhaps most importantly, the adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. Moreover, the ultimate TDIU determination is placed on the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, in weighing the lay and medical evidence of record, as well as the Veteran's education and work history, the Board finds that the weight of the evidence demonstrates that the Veteran was not able to obtain or maintain substantially gainful employment in his prior fields or in another substantially gainful profession or field due to his service-connected disabilities, and that entitlement to TDIU, to include as on an extraschedular basis, is warranted for the period on appeal. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gresham, Trevor 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.