Citation Nr: 25005220 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 18-09 797 DATE: April 17, 2025 ORDER Entitlement to an extraschedular total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is granted for the entire appeal period. FINDING OF FACT The Veteran's service-connected disabilities rendered him unemployable for the entire appeal period (since July 29, 2016). CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his February 2018 substantive appeal, but withdrew the request in October 2021. Thereafter, in January 2022, and June 2022, the Board remanded the Veteran's claim for an increased initial rating for his back disability. In January 2023, the RO granted a TDIU from June 30, 2022, and in June 2023, the Board remanded the issue of entitlement to a TDIU prior to that date. In June 2024, the Board granted a TDIU from November 23, 2021, and remanded the issue of entitlement to an extraschedular TDIU prior to that date for procurement of an opinion from the Director of Compensation Service (Director). As the opinion was obtained in February 2025, the Board finds there has been substantial compliance with the prior remand and that appellate review is now proper. Entitlement to a TDIU prior to November 23, 2021. As noted, TDIU is addressed herein as part and parcel of the Veteran's claim for an increased initial rating for his back disability, which was finally adjudicated by the Board in a June 2024 decision; the appeal period runs from July 29, 2016. The June 2024 Board decision granted a schedular TDIU for the period from November 23, 2021, onward. Notably, at no time prior to November 23, 2021, did the Veteran have a single disability that was 60 percent disabling, nor did he 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). Prior to November 23, 2021, the Veteran, who stopped working in the 1980s, was service connected for his back, a back scar, tinnitus, and hearing loss effective July 29, 2016; he was separately awarded service connection for left lower extremity radiculopathy from December 14, 2020. 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 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 June 2024, the Board's remand sought an opinion from the Director and in February 2025, 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 November 23, 2021. 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). The Board finds the evidence persuasively weighs in favor of finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment for the entire appeal period. Initially, in determining whether the Veteran's service-connected disabilities prevented him from securing and maintaining substantially gainful employment, the Board must consider his educational and employment history. The Veteran's December 2022 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) documents that he completed two years of post-secondary training, which was described elsewhere in the record as trade-based training in engineering. In terms of work history, the Veteran worked for approximately two and a half years as a process engineer in the 1970s completing electronics engineering and then in sales at a department store in the 1980s. See December 2022 VA Form 8940, December 2016 back examination report, and June 2023 psychiatric examination report. Notably, the Veteran's sole work history is in physical jobs including in a manufacturing electronics in a factory and as a salesman; there is no evidence he has training or experience in any type of sedentary employment. Turning to the evidence supporting the Board's finding that the Veteran's service connected disabilities precluded employment, the most persuasive evidence is from VA examiners. Indeed, a December 2016 examiner intimated that the Veteran's back disability would have a severe impact on his ability to perform physical employment (the only type in which the Veteran had training and experience). The examiner continued to explain that the Veteran's back pain would increase with prolonged standing, walking, and bending. While a different December 2016 examiner expressed an opinion that the Veteran's hearing loss and tinnitus would not interfere with employment, the Veteran did report having difficulty hearing his wife in normal conversation. During his next back examination in December 2019, another examiner explained that the Veteran's back disability prevented standing or walking for more than 10 minutes and prevented him from lifting anything over 10 pounds. Similarly, a December 2020 back examiner stated that the Veteran would need to avoid prolonged sitting, standing, and walking. Finally, a February 2021 examiner again documented the Veteran's reports of having a hard time hearing his wife and that the roaring of his tinnitus changed the quality of his hearing acuity. Applying these medical findings to the Veteran's employment history, the Board finds it is reasonable to conclude that the Veteran would be unable to work. Specifically, working in a factory and sales both require the ability to stand and walk for prolonged periods; even working in a department store would require lifting 10 pounds worth of product. Moreover, working in a factory with poor hearing could be dangerous. Similarly, asking customers to repeat themselves regularly would impede a lucrative sales position. The Board disagrees with the Director's February 2025 position that the Veteran could engage in sedentary employment. In this regard, the examiner based the opinion on an inaccurate factual premise - that the Veteran holds a college degree. Moreover, the Board observes that the Veteran does not have any history of working in a sedentary position - given his last dates of working, it is not even clear if the Veteran ever worked with technology like computers, the internet, or the like. Indeed, even the Director notes that there has been "a dramatic shift in the labor force over the last several decades[,]" which begs the question of how the Veteran would compete for and obtain substantially gainful employment since July 2016 in fields he has never worked in, never trained for, and that used modalities for production that the Veteran never engaged with during his working career. Finally, the Director intimated that the Veteran could seek waivers under the Americans with Disabilities Act (ADA) to allow him to take breaks and accommodate his disability. The Board finds, however, that it is unreasonable to assume an employer would hire someone for a physical job if that person would need breaks at ten minute intervals and who would be unable to communicate effectively due to impaired hearing. Stated differently, the Board finds it unlikely that such a hypothetical employer exists, notwithstanding the existence of the ADA. Ultimately, the Board finds that the evidence of record persuasively weighs in favor of finding the Veteran's service-connected disabilities precluded him from working in his historic field. Further, he does not have the training or experience to find work in a new field given his service connected disabilities. Thus, the Board finds his service-connected disabilities precluded him from engaging in his past occupation and obtaining or engaging in any substantially gainful employment. Considering the foregoing, entitlement to an extraschedular TDIU is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.16. Importantly, the Board herein has granted TDIU based on the combined impact of the Veteran's service connected back, hearing loss, and tinnitus for the period prior to November 23, 2021, not on a single disability. In this regard, the Veteran himself did not argue that a single disability precluded employment. Moreover, the Board has found above that it is the combination of reduced physical stamina and reduced hearing acuity that ultimately precludes employment, not a single disability. Thus, the Board reiterates that the most probative evidence indicates that the combined impact of the Veteran's service-connected disabilities prevented employment prior to November 23, 2021, not one disability alone. 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.