Citation Nr: 25004089 Decision Date: 03/26/25 Archive Date: 03/26/25 DOCKET NO. 15-03 282 DATE: March 26, 2025 ORDER Prior to December 6, 2012, entitlement to an extraschedular total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is denied. FINDING OF FACT Prior to December 6, 2012, the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW Prior to December 6, 2012, the criteria for an extraschedular TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2020, a transcript of which is of record. The Veteran subsequently requested to appear for a second hearing, which was scheduled, but he ultimately withdrew that request. The appeal was remanded in December 2020, adjudicated in June 2022, and subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2023, following a January 2023 Joint Motion for Partial Remand (JMPR), the Court partially vacated the Board's decision and remanded such to the Board. Most recently, in December 2023, the Board remanded the Veteran's claim for a TDIU as inextricably intertwined with implementation of the Board's awards of service connection. The RO has implemented the grants and also granted a TDIU from December 6, 2012. 1. Entitlement to an extraschedular TDIU prior to December 6, 2012. The Veteran contends that prior to December 6, 2012, the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment. In a December 2024 rating decision, the RO granted a schedular TDIU for the period from December 6, 2012, onward. Prior to that date, the Veteran did not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the combined ratings did not satisfy the percentage requirements. In this regard, the Veteran did not have a single disability that was 60 percent disabling, and he did not have a service-connected disability that was 40 percent disabling with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). Indeed, prior to December 6, 2012, the Veteran, who stopped working in 2010, was service connected for flat feet with a 30 percent evaluation from August 17, 2010; a left ring finger scar rated as noncompensable from February 26, 1970; tinnitus rated as 10 percent disabling from August 17, 2010; hearing loss rated as noncompensable from August 17, 2010; spinal stenosis of the low back rated as 10 percent disabling from July 3, 2012; and right lower extremity sciatica rated as 10 percent disabling from July 3, 2012. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16 (a), discussed above, the case may be submitted to the Director of Compensation Service (Director) for extraschedular consideration. 38 C.F.R. § 4.16 (b). Entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background, including his or her employment and educational history. 38 C.F.R. § 4.16 (b). If the Board finds that extraschedular consideration is warranted, then the case should be remanded to the RO for referral to the Director. The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In December 2023, the Board's remand suggested to the RO that a determination from the Director could be obtained if the Veteran's rating did not meet the schedular criteria for a TDIU for the entire appeal period (from August 17, 2010). In December 2024, the Director determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to December 6, 2012. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Upon a review of the record, the Board finds that an extraschedular TDIU is not warranted, and the claim must be denied. The Veteran did not complete high school, but trained as a plumber and owned and operated his own plumbing business until 2010. Turning to the evidence of record, the Veteran's September 2013 application for a TDIU cites peripheral neuropathy in the upper extremities, back pain, and sciatica as the cause of his unemployment. Notably, the Veteran was not service connected for peripheral neuropathy in the upper extremities prior to December 6, 2012. Moreover, the Veteran regularly cited his upper extremity neuropathy as the cause of his retirement including in lay statements and while receiving treatment or undergoing examinations in November 2010, January 2013, August 2013, March 2019, September 2020, and March 2021. Additionally, in August 2013 the Veteran submitted statements from a friend (R.S.) and his son, both of whom had worked with the Veteran and both of whom cited the Veteran's hand problems as leading to his stopping working due to numbness and pain. In sum, the lay statements of record do not suggest the Veteran's service-connected disabilities alone rendered him unemployable prior to December 6, 2012. Instead, such statements indicate that his bilateral upper extremity neuropathy that was not yet service connected materially contributed to his unemployment. In addition to the lay statements, the record includes several VA examination reports commenting on employability as well as the determination from the Director noted above. A November 2010 examiner indicated that the Veteran's hearing loss would cause problems working in settings with background noise, but his left finger scar and flat feet would have little to no effect on occupational functioning. An October 2012 spinal examiner opined that the Veteran's back disability would not impact on his ability to work. In addition to the foregoing, the December 2024 determination from the Director is also against a finding that the Veteran's service-connected disabilities alone precluded employment prior to December 6, 2012. The findings from the Director are informative and well-reasoned, and the Board agrees with this determination. In support thereof it was acknowledged that the Veteran's service connected disorders could cause occupational limitations, but that the weight of the evidence did not show he would be unable to obtain or maintain gainful employment due to his service connected disorders. In short, based on the foregoing, the Board concludes that prior to December 6, 2012, the Veteran's service-connected disabilities alone did not preclude him from securing and following substantially gainful employment. First, there is no evidence of impairment of function from his service-connected tinnitus, left ring finger scar, or hearing loss such that he was prevented from his employment plumbing. Second, while his service-connected back, feet, and right lower extremity sciatica may have impacted his ability to maneuver or stand for long periods, the lay and medical evidence of record establish that these factors alone did not preclude employment. Indeed, the cumulative evidence clearly establishes that the Veteran stopped working in large part due to his bilateral upper extremity neuropathy, which was not service connected until December 6, 2012. Unfortunately, the weight of the evidence is against finding that, prior to December 6, 2012, the Veteran's then-service-connected disabilities alone precluded him from securing and following substantially gainful employment. Therefore, the criteria for an extraschedular TDIU prior to December 6, 2012, have not been met and the claim must be denied. (Continued on the next page) ? The Board did not direct the RO to obtain a determination from the Director in this case and instead suggested that the RO only do so if they deemed necessary. As outlined above, after the RO's referral, the Board agrees with the Director that although the evidence raised the question of TDIU entitlement during the period the evidence persuasively weighs against finding entitlement arose. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Sosna, 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.