Citation Nr: 25005394 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 18-47 220 DATE: April 22, 2025 ORDER For the period prior to May 17, 2023, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Prior to May 17, 2023, the Veteran's service-connected disabilities were as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW Prior to May 17, 2023, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. ? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision that granted service connection for chronic obstructive pulmonary disease (COPD), effective December 29, 2006. The Veteran appealed the initial rating, and the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was later found to have been raised by the record as part and parcel of the claim for a higher initial rating for COPD. See July 2019 Board decision. The issue of entitlement to a higher rating for COPD was adjudicated in a December 2022 Board decision and is no longer on appeal. In May 2021, the Veteran testified at a hearing before a Veterans Law Judge who has since retired. A transcript of that hearing is of record. In January 2022, the Veteran declined the opportunity for a new hearing before the Board. In May 2023, the Board denied a referral for extraschedular consideration. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In December 2023, as a result of a Joint Motion for Partial Remand, CAVC vacated the May 2023 Board decision and remanded the case back to the Board. Thereafter, in July 2024, the Board remanded the issue of entitlement to a TDIU for referral to the Director of Compensation and Pension Service for extraschedular consideration prior to May 17, 2023. The case is now back before the Board. *** 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 a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to May 17, 2023, service connection is in effect for COPD (30 percent since December 29, 2006) and unspecified depressive disorder (30 percent since May 3, 2016). As such, during this period, the Veteran did not meet the criteria for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Nevertheless, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In July 2024, the Board remanded the issue of entitlement to a TDIU prior to May 17, 2023, for extraschedular consideration. In December 2024, the AOJ recommended that entitlement to an extraschedular TDIU be granted, effective May 3, 2016. See VA Memo from December 17, 2024. Nevertheless, in January 2025, the Executive Director, Compensation Service, concluded that "the overall evidence fails to support the contention that the service-connected conditions support an exceptional situation that prevent gainful employment prior to May 17, 2023." See VA Memo from January 31, 2025. This case has now been returned to the Board for further review. In this regard, although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director's decision is in essence a decision by the AOJ and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. It is not evidence. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran, through his representative, asserts that he is entitled to a TDIU from May 2016, onward. See third party correspondence from February 24, 2025. In an April 2012 Tuberculosis Disability Benefits Questionnaire, a VA examiner stated that the Veteran's COPD impacted the Veteran's ability to work. In an April 2015 Respiratory Conditions Disability Benefits Questionnaire, a VA examiner opined that the Veteran's COPD did not impact the Veteran's ability to work. The Veteran had a September 2017 mental disorders examination. The Veteran reported being a high school graduate with a C-D average and having started and dropped out of trade school. The Veteran reported working post-service in the VA nursing system as an orderly, working in a cotton mill, working as a firefighter until injuring his back in 1993, and working in a barber shop in 1993. The examiner noted the Veteran's diagnosis of Unspecified Depressive Disorder. The examiner opined that the Veteran's mental condition caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupation tasks only during periods of significant stress. In a March 2018 VA Form 21-8940, the Veteran reported that he last worked as a barber in 1993 and that he was unable to work due to COPD, depression, tiring easily, and back pain. The Veteran had a December 2019 VA respiratory conditions examination. The examiner stated that the Veteran's respiratory condition impacted his ability to work, noting that his COPD and asthma impacted the Veteran's ability to perform tasks due to shortness of breath during physical activities, wheezing, chest tightness, right lung pain, congestion, rattling in the chest, and chronic progressive cough. At the May 2021 Board hearing, the Veteran testified that he last worked in 1993, that he had breathing problems that caused him to stop working, and that he needed his nebulizer and was unable to take it to work. The Veteran submitted his January 2024 Social Security Statement which showed that he had no taxed Social Security earnings since 1983 and no taxed Medicare earnings since 1993. In his March 2024 VA Form 21-8940, the Veteran stated that he last worked in December 1993 at a barbershop. The Veteran stated that his service-connected disabilities of COPD with history of asthma and Unspecified Depressive Disorder prevented him from following any substantially gainful occupation. A May 2024 private TDIU Vocational Assessment report from CRC Services, LLC, was submitted. Based on a review of the Veteran's claims file, background, education, vocational history, and service-connected conditions and limitations, the private evaluator opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least May 2016 and continuing to the present. Based on the evidence above, the Board finds that, prior to May 17, 2023, the Veteran's service-connected disabilities were at least as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. In this regard, the evidence establishes that the Veteran's respiratory disability limited the Veteran's ability to do work that requires physical exertion. The evidence further establishes that his mental health disability limits his ability to be productive or work in an environment that requires social interaction or that is stressful in nature. The Board finds that these disabilities combine to produce an insidious disability picture that is at least as likely as not incompatible with substantially gainful employment, especially considering the Veteran's education level and work history. As noted above, the Veteran worked as an orderly, in a cotton mill, and as a firefighter, with a brief experience in a barber shop. He has a high school education with some trade school. Further, he has described himself as a low performing student. Given the Veteran's physical limitations associated with his COPD, he would be limited to non-physical work that would require focus and concentration as well as time management or productivity requirements. The evidence, however, suggests that such requirements are incompatible with the occupational impairment caused by the Veteran's mental health disability. (Continued on the next page) ? In sum, resolving doubt in favor of the Veteran, the Board finds that, for the period prior to May 17, 2023, the criteria for entitlement to an extraschedular TDIU, based on multiple service-connected disabilities are met. In reaching this conclusion, the Board is persuaded by the May 2024 private vocational assessment, which shows adequate consideration of the relevant, is supported by a sound rationale, and, as such, carries significant probative weight. The Board will not specify the effective date of the TDIU to allow the agency of original jurisdiction to do so in the first instance and preserve due process rights. See 38 U.S.C. § 7104(a); see also Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating."). The Board notes that this TDIU matter is part and parcel of the increased rating for COPD issue first adjudicated by the Board in July 2019, as referenced above. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.