Citation Nr: 25004446 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 19-23 990 DATE: April 1, 2025 ORDER For the appeal period prior to June 29, 2017, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT The evidence is at least in approximate balance as to whether the combined effects of the Veteran's service-connected disabilities rendered her incapable of securing or following a substantially gainful occupation for the appeal period prior to June 29, 2017. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU for the appeal period prior to June 29, 2017, on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2003 until her honorable discharge in July 2004, with additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The January 2018 rating decision, in relevant part, granted entitlement to a TDIU effective June 29, 2017. In a May 2023 decision, the Board denied the Veteran's claim for entitlement to an effective date prior to June 29, 2017, for the grant of a TDIU. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2024, the Court granted a Joint Motion for Remand (JMR) and remanded the case to the Board for readjudication consistent with the terms of the JMR. In a September 2024 decision, the Board remanded the matter for referral to the Director of Compensation Service for consideration of an extraschedular TDIU prior to June 29, 2017, pursuant to 38 C.F.R. § 4.16(b). The matter has now returned to the Board for further appellate review. Entitlement to a TDIU prior to June 29, 2017 A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a 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). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Here, as noted above, in a January 2018 rating decision, the Veteran was granted TDIU effective June 29, 2017, and what remains on appeal is entitlement to TDIU prior to June 29, 2017. The Veteran contends that she is entitled to a TDIU from October 2016. See, e.g., Notice of Disagreement received July 13, 2018 (requesting that TDIU be awarded retroactive to October 11, 2016); DRO Informal Conference Report dated June 17, 2019 (noting the Veteran's contention that "October 2016 is the proper effective date"). When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability, a claim for entitlement to a TDIU is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Affording the Veteran the benefit of the doubt, the Board finds for the purpose of this decision that VA received an informal TDIU claim on October 11, 2016, as part and parcel of an October 7, 2016, claim for increase for a lumbar spine disability. See VA Form 21-516EZ received October 7, 2016 (claim for increased rating for lumbar spine disability); VA Form 21-4138 received October 11, 2016 (statement from Veteran's representative that he had provided the information necessary "for [the Veteran's] TDIU claim"); VA Form 21-4192 received October 11, 2016 (employment information completed by Veteran's prior employer). For the period from October 7, 2016, to June 29, 2017, the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a) were not met. Specifically, during that period, the Veteran was service connected for PTSD, rated 30 percent disabling; lumbosacral strain, rated 10 percent disabling; right knee strain, rated 10 percent disabling; left knee strain, rated 10 percent disabling; tinnitus, rated 10 percent disabling; GERD, rated 10 percent disabling; and migraine headaches, rated 0 percent disabling. Because the Board lacks the power to award an extraschedular TDIU in the first instance, the matter was referred to the Director of Compensation Service in September 2024. In October 2024, the Director issued an advisory opinion stating that after considering all relevant evidence, including but not limited to the Veteran's education, training, work history, and the RO's summary of evidence, the overall evidence does not support the contention that the service-connected disabilities prevented employment on an extraschedular basis for the period prior to June 29, 2017. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded her from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage") prior to June 29, 2017. Moore v. Derwinski, 1 Vet. App. 356 (1991). After review of the competent and probative evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) prior to June 29, 2017. The evidence of record shows that the Veteran is unemployed and that she has a college degree and some additional training in massage therapy. See, e.g., VA treatment record dated December 5, 2016; VA Form 21-8940 received August 18, 2017. With respect to prior employment, the Veteran reported that she worked as a dishwasher for 15 to 20 hours a week from June 2015 to April 2016. Prior to that she worked as a tour guide for 40 hours a week from June 2011 to May 2012 and as a teacher for 40 hours a week from February to October 2010. The Veteran reported that her highest gross earnings per month at her last job as a dishwasher was $500. She further reported that she became too disabled to work in February 2016. See VA Form 21-8940 received August 18. A VA treatment record dated April 13, 2016, noted that the Veteran had recently stopped working as a dishwasher because of the pain in her arm. (She is not service connected for an arm or shoulder disability.) The VA treatment record further noted that the Veteran lived with her father and barely made enough to support herself. A VA treatment record dated May 6, 2016, noted the Veteran's chronic low back pain, as well as right elbow pain that resolved after she stopped her dishwashing job. It further noted that the Veteran was seen on April 11, 2016, when she walked in feeling depressed with suicidal ideation and that she was diagnosed with major depression, PTSD, panic disorder with agoraphobia, and MST. A June 2016 VA examination indicated that the Veteran reported daily low back pain that was worse with standing for 30 minutes, driving for 30 to 60 minutes, and lifting 25 lbs. The examiner noted that the Veteran's back did not otherwise restrict her from light and sedentary occupations. In October 2016, the Veteran reported that her back condition had worsened. See VA Form 21-526EZ received October 7, 2016. A VA treatment record dated October 14, 2016, indicated that the Veteran reported that she has been "afraid of losing everything" and that her concerns are compounding. It also noted the Veteran's reports that her symptoms of PTSD prevented her from being able to work regularly. An Intake Assessment dated November 3, 2016, noted that the Veteran reported experiencing significant PTSD symptomatology, including intrusive disturbing memories; sleep problems; nightmares; avoidance behaviors; trouble remembering important things about stressful military experiences; loss of interest in things that she used to enjoy; feeling cut off/alone/distant; feeling emotionally numb; feeling irritable, angry outbursts; difficulty concentrating; hypervigilant; feeling future will be cut short; and elevated startle response. With respect to the Veteran's work history, the assessment stated that the Veteran found it difficult to work around people and stay in one place. See Medical Treatment Record - Government Facility received August 16, 2017. A Progress Note dated December 3, 2016, indicated that the Veteran expressed fear, physiological reactivity, and dissociative reactivity during the session. See Medical Treatment Record - Government Facility received August 16, 2017. A Counseling Record - Narrative Report dated February 1, 2017, indicated the following service-connected disabilities and associated vocational impairments: (1) Lumbosacral or Cervical Strain - Inability/Limited/Guarded frequent, repetitious and/or prolonged bending & lifting, pushing, pulling, stooping, crouching, overhead/above shoulder work, long distance driving, maintaining steady head and neck positioning, standing, walking, climbing, and related activities; (2) hiatal hernia - Inability/Limited/Guarded ability to engage in activities that required frequent bending and lifting; (3) Limitation of flexion, knee (both) - Inability/Limited/Guarded ability to perform activities that require prolonged standing, walking, climbing stairs, squatting, crouching, carrying, balancing, prolonged operation of machinery and equipment requiring foot controls, and related activities; (4) PTSD - Unable/Limited/Guarded ability to engage in employment duties that present significant stress, pressure, demanding timeframes, dealing with difficult people, issues with memory and word recall and crowded environments; and (5) Tinnitus - Inability/Limited/Guarded ability to comprehend verbal communication and follow verbal directives in loud/noisy environments. It further noted that the Veteran's service-connected disabilities significantly impaired her ability to prepare for, obtain and/or retain employment. See VA Form 28-1902b received October 4, 2017. Based on a review of the medical and lay evidence of record, the Board finds that the evidence is at least in approximate balance that for the appeal period prior to June 29, 2017, the combined effects of the Veteran's service-connected disabilities precluded her from any substantially gainful occupation consistent with her experience, education, and training. Therefore, resolving all doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis prior to June 29, 2017, is warranted. The claim is granted. G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.D., Associate 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.