Citation Nr: 25003877 Decision Date: 03/21/25 Archive Date: 03/21/25 DOCKET NO. 16-00 487 DATE: March 21, 2025 ISSUE Entitlement to an effective date prior to May 14, 2014, for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. ORDER Entitlement to an effective date prior to May 14, 2014, for the grant of a TDIU on an extraschedular basis is GRANTED. FINDING OF FACT Prior to May 14, 2014, the Veteran's service-connected disabilities prevented him from securing and following any substantially gainful occupation. CONCLUSION OF LAW Prior to May 14, 2014, the criteria for an extraschedular TDIU are met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. FACTUAL AND PROCEDURAL HISTORY The Veteran served on active duty in the Armed Forces of the United States from November 1979 to March 1980, September 1980 to August 1983, and February 2003 to October 2003. The Veteran first filed a TDIU claim on August 22, 2010, with the Department of Veterans Affairs (VA). On September 11, 2010, the VA Regional Office (RO) issued a rating decision that denied entitlement to a TDIU, and the Veteran did not file a timely appeal; however, as new evidence was received within one year, the rating decision did not become final. The RO again denied the TDIU claim in a June 10, 2013, rating decision. On February 21, 2014, the Veteran noted a timely appeal of the rating decision to the Board of Veterans' Appeals (Board). REASONS AND BASES FOR THE FINDING AND CONCLUSION Considering the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Although the Board has an obligation to provide adequate reasons and bases supporting this Decision, there is no requirement that every piece of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). TDIU - Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 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). Rating boards should submit to the Director of Compensation Service (Director) for extraschedular consideration 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). See 38 C.F.R. §4.16 (b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see also Friscia v. Brown, 7 Vet. App. 294 (1994). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. §4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. § 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU - Analysis In this case, the issue of a TDIU was raised in August 2010, and again in November 2011, when the Veteran claimed that his service-connected degenerative arthritis of the spine and intervertebral disc syndrome with cervical spinal stenosis (cervical spine disability) was preventing engagement in gainful employment. The cervical spine disability caused stiffness and pain of the upper body, an inability to stand for long periods of time, and an inability to perform manual labor. The Veteran also reported that his service-connected sub foveal choroidal neovascular membrane, left eye with macular scar (left eye disability) caused a blind spot on his central vision which limited his ability to maintain full employment. He stated that his left eye disability prevented him from getting reinstated as a soil scientist. The Veteran explained that soil scientists were often required to drive overnight to different geographical locations; a task that he was not able to accomplish due to his service-connected left eye disability. The Veteran also explained how the defects in his vision made it impossible to work as a soil scientist, to include an inability to track data across a sheet of paper. Pertinently, in an August 2024 rating decision, subsequent to the Board most recent remand in August 2024, entitlement to an earlier effective date for the cervical spine disability was granted effective August 22, 2010, because a clear and unmistakable error (CUE) was made and entitlement to an earlier effective date for the grant of service connection for the left upper radiculopathy of C5-C6 nerve roots associated with the cervical spine disability was granted effective August 22, 2010, because a CUE was made. However, prior to May 14, 2014, the minimum schedular criteria of 38 C.F.R. § 4.16 (a) are not met. Prior to May 14, 2014, the Veteran's service-connected disabilities include the following: left eye disability (30 percent disabling), cervical spine disability (30 percent disabling), and left arm radiculopathy (20 percent disabling). When a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. §4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. §4.16(b). The RO referred the case to the Director following the August 2024 Board remand. The Director denied the claim in a December 2024 VA Memorandum. Consequently, as the claim has been denied on an extraschedular basis by the Director, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b). We now turn to the evidence of record. The record shows that the Veteran last worked full-time in 2004 as a soil scientist. Following this, he held marginal, part-time positions as a produce clerk, an attendant in a lobby of a fast-food restaurant, and retail stocker. As for his education, he completed high school and college, and holds a Master's degree in Agronomy. He has not received other education or training before or since becoming too disabled to work. In a June 2005 determination, the Social Security Administration (SSA) found the Veteran was disabled due to his left eye blindness and right shoulder disability, both of which were service connected throughout the pertinent time period. The Veteran subsequently sought a reevaluation, and in 2011 the SSA determined that the Veteran had additionally been disabled since November 2010 due to his cervical spine disability, which was also service connected throughout the pertinent appeal period. Lay statements in support of the Veteran's claim were submitted by his spouse and daughter, detailing his difficulties due to his service-connected disabilities. Specifically, his daughter submitted a statement that was associated with the electronic record in November 2009, but dated in October 2011, that detailed how the Veteran's work as a soil scientist involved digging, plotting, surveying, and classifying soil. The Veteran was afforded a VA examination in December 2010 in which he reported stiffness; spasms; and pain in his neck that radiated into his left shoulder that was severe, lasting one to two days every week or month. He noted that he was unable to lift or move heavy objects due to pain. The Veteran reported that he retired from work due to his physical problem (medical retirement). He noted that his disability caused increased absenteeism at work and that it caused problems with lifting and carrying. The Veteran was afforded a VA examination in November 2011 in which he reported that his service-connected left eye disability caused significant effects on his usual occupation as he had vision difficulty. He also found it difficult to drive at night. In a November 2011 VA examination, an examiner opined that due to his service-connected cervical spine disability the Veteran could not perform moderate/heavy physical exertion in general but could do sedentary work and could maintain/secure gainful employment. While the findings of an examiner are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1?Vet. App.?66 (1991); the Board is free to assess medical evidence and is not obligated to accept an examiner's opinion. Wilson v. Derwinski, 2?Vet. App.?614 (1992). In this case, the Board finds that the weight of the competent, credible, and probative evidence demonstrates that the Veteran's service-connected disabilities precluded him from securing or following all forms of substantially gainful employment prior to May 14, 2014. In evaluating the medical and lay evidence of record, together, they paint a picture of the Veteran's service-connected disabilities, which limited his ability to work prior to May 14, 2014. The Veteran reported that he was not able to work due to his physical problems which caused neck pain, shoulder pain, and vision difficulty that made it impossible to work as a soil scientist. The Board finds the Veteran's reports credible and that he is competent to make them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 & n.4 (Fed. Cir. 2007). As discussed above, a November 2011 examiner opined that due to his service-connected cervical spine disability the Veteran could not perform moderate/heavy physical exertion in general but could do sedentary work and could maintain/secure gainful employment. However, the examiner did not account for the physical demands, such as digging, placed on a soil scientist, as noted by the Veteran's daughter. Moreover, the examiner did not address how the Veteran's service-connected left eye disability affected his ability to maintain gainful employment as a soil scientist, to include his inability to drive at night and inability to track data across a sheet of paper. The Board is persuaded that the Veteran would not be able to maintain employment prior to May 14, 2014, given the symptoms from his service-connected conditions. In reaching these conclusions, the Board finds that the evidence is at least in approximate balance as to the question of whether the Veteran's service-connected disabilities prevented him from securing and following any substantially gainful occupation prior to May 14, 2014. As such, the benefit-of-the-doubt rule applies, and the claim for TDIU prior to May 14, 2014, is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The RO will set an effective date for the grant. This preserves the Veteran's right to appeal the effective date awarded by the RO. See DAV v. Sec'y of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.