Citation Nr: 25007783 Decision Date: 06/11/25 Archive Date: 06/11/25 DOCKET NO. 13-06 570 DATE: June 11, 2025 ORDER Entitlement to a total disability rating based on unemployability (TDIU) is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of TDIU are met. 38 U.S.C. §§ 5103A, 5107; 38 C.F.R. 3.102, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2022 decision, the Board denied entitlement to a TDIU on an extraschedular basis. The Veteran appealed the decision to the United States Court for Veterans Claims (Court). In November 2023, the Court issued a Memorandum Decision vacating the July 2022 Board decision, and remanding the matter to the Board for further action consistent with the terms of the Memorandum Decision. In July 2024, the Board remanded the matter for further evidentiary development pursuant to the Memorandum Decision. As discussed below, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to a total disability rating based on unemployability (TDIU) The Veteran seeks entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(a) and (b). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided 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. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16 (b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); see Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: a veteran's history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and, whether a veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is currently rated at 20% for a left shoulder condition and 20% for residual scars of the left shoulder, and therefore does not meet the requirements for a schedular TDIU. 38 C.F.R. § 4.16(a). An August 2021 Board decision remanded the claim for extraschedular consideration by the Director of the Compensation Service (Director). The Director subsequently denied the Veteran's claim. See January 2022 VA Memorandum; 38 U.S.C. § 7104(a); Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (providing that following the initial referral to the Director for extraschedular consideration, the Board reviews the issue of entitlement to a TDIU de novo). After careful review of the evidence, the Board finds that entitlement to a TDIU is warranted on an extraschedular basis. By way of employment history, an August 2010 VA treatment record notes the Veteran had previous jobs as a security guard and cook, and previously worked in janitorial services. In an April 2011 VA Form 21-4192, Request for Employment Information, the Veteran reported last working as a cook from January to May 2003. A March 2015 VA examination notes that the Veteran's left shoulder disability impacts his ability to perform any type of occupational task, without further elaboration. A July 2021 private treatment record notes the Veteran has chronic pain in his left shoulder due to injuries and multiple surgeries, and continues to have pain and weakness, which limits his ability to use his left arm. The Veteran also submitted a July 2021 lay statement, asserting that he has problems holding and lifting items in a store. In a January 2022 opinion, the Executive Director of Compensation Service opined that the evidence showed there would be some limitations to occupations requiring physical labor, but the records do not indicate the pain and limitation of motion from the left shoulder condition would cause the Veteran to be totally disabled. Accordingly, the Director found that entitlement to an extraschedular TDIU was not established. An August 2024 VA examination notes that the Veteran experienced decreased range of motion in his left shoulder, has difficulty reaching for items at higher than waist height, and has issues holding and grasping items more than five pounds without left shoulder pain. The Veteran further reported using an arm sling constantly for support and mild relief of pain. Furthermore, he reported that during a flare-up, he is unable to perform any physical tasks when the shoulder is painful. The examiner opined that these conditions prevented the Veteran's ability to perform any type of occupational task. The examiner reasoned that the Veteran is a retired California state hospital worker, has missed 0-1 week of work time in the last twelve months, and has not worked in the last four years. The examiner also opined that the Veteran is unable to do sedentary work in a separate individual unemployability statement. In a December 2024 clarifying opinion, the examiner elaborated that the Veteran would not be employable at this time due to his left shoulder disability, even though this is his non dominant upper extremity, because he has impairment of use he requires constant use of an arm sling, which would potentially create an unsafe condition for the Veteran in a work environment. The examiner noted in support of this position that the Veteran has continued issues with the use of his left shoulder as he can only minimally lift or carry any object, has moderately severe limitation of his range of motion, and uses an upper arm sling constantly because he has increased pain when the left arm is in a dependent position. The evidence of record therefore suggests that the Veteran's service-connected disabilities impair his ability to function in the workplace. The Board acknowledges the negative determination made by the Director of Compensation Service in January 2022. Specifically, the Director determined that an extraschedular TDIU was not warranted. The Director provided generic arguments for why the Veteran was not entitled to TDIU on an extraschedular basis. The Director failed to provide adequate reasons or bases, specific to the Veteran, for why he was not entitled to the benefits sought. The Board is not bound by an adverse determination by the Director regarding entitlement to a TDIU on an extraschedular basis. See Wages, 27 Vet. App. at 236. In this regard, the Board reviews the Director's determination de novo and it does not constitute evidence that must be weighed. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In reviewing the Director's determination, the Board notes that the Director made a generic finding that the record did not support the Veteran's claim and failed to provide specific findings in the record to justify a denial. The Director did not identify or discuss any evidence weighing against the Veteran's claim. Accordingly, the Board assigns low probative value to the Director's determination. Given the Veteran's consistent and credible statements, and the supporting VA medical opinions of record, the Board finds the evidence supports that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. Accordingly, the Veteran's TDIU claim must be granted. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Marshall, J. 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.