Citation Nr: 25008563 Decision Date: 06/30/25 Archive Date: 06/30/25 DOCKET NO. 16-01 562 DATE: June 30, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disability on an extraschedular basis, from September 29, 2011 to April 21, 2024, is granted. FINDING OF FACT The Veteran is unable to secure or follow substantially gainful employment due to his service-connected disability. CONCLUSION OF LAW The criteria for a finding of TDIU on an extraschedular basis from September 29, 2011 to April 21, 2024 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to September 1978 and from December 1980 to April 1982. This case was previously before the Board. In a January 2021 decision, the Board denied entitlement to a TDIU. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the portion of the Board's January 2021 decision that denied entitlement to a TDIU. The Board remanded the case in July 2022 and March 2023, and supplemental statements of the case (SSOC) were issued in October 2022 and July 2024, respectively. A September 2024 Board decision granted entitlement to a TDIU effective April 22, 2024 and remanded the issue of entitlement to a TDIU on an extraschedular basis for the period prior to April 22, 2024. 1. Entitlement to a TDIU on an extraschedular basis prior to April 22, 2024. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities for the period prior to April 22, 2024. TDIU 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 a single service-connected disability ratable at 60 percent or more, or as a result of 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. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). This case has a lengthy procedural history. The September 2024 Board decision determined the issue of entitlement to TDIU was part and parcel of the September 29, 2011 claim for service connection for a lumbar spine disability. As such, the period for consideration is from September 29, 2011 to April 21, 2024. As an initial matter, the Board finds that the Veteran does not meet the schedular criteria for TDIU. For the period prior to April 22, 2024, service connection is in effect for: degenerative disc disease of the lumbar spine at 40 percent disabling from September 29, 2011; radiculopathy of the right lower extremity (RLE) at 10 percent disabling from September 24, 2015; radiculopathy of the left lower extremity (LLE) at 10 percent disabling from September 24, 2015; radiculopathy of the RLE femoral nerve at 10 percent disabling from April 22, 2024; and radiculopathy of the LLE femoral nerve at 10 percent disabling from April 22, 2024. The Veteran's combined evaluation is 40 percent from September 29, 2011 and 50 percent from September 24, 2015. As he does not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability resulting in a combined rating of at least 70 percent, the schedular criteria have not been met. When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating on an extraschedular basis may nonetheless be granted in cases when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(b). The Court of Appeals for Veterans Claims held that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id. The noneconomic component is the claimant's ability to secure or follow substantially gainful occupation employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training. Id. Additionally, attention must be given whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Further, attention should be given whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. The case was referred to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. In an April 2025 advisory opinion, the Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to April 22, 2024. Based on a review of the evidence, and taking into consideration the Veteran's level of education, work experience, and resulting impairment from service-connected disabilities, the Board finds that the evidence persuasively weighs in favor of finding entitlement to a TDIU on an extraschedular basis from September 29, 2011. The record indicates that the Veteran has not engaged in substantially gainful employment during the appeal period. The Veteran has consistently reported that he has not worked since April 1982. The Board has considered the Veteran's employment history and education. With respect to the Veteran's employment history, he has reported that he was last employed in April 1982, as an infantryman in the Army. He otherwise has no other work history. His education level consists of high school, 1 year of college, and training in heating and cooling in the military. The record indicates that the Veteran's physical ability to perform occupational tasks is significantly impaired by service-connected disability. An April 2014 VA back examination noted the Veteran's reports that he cannot lift or sit up without pain. A January 2016 private treatment record noted the Veteran's lower back pain interfered with daily chores, employment, exercise, grooming, and walking. A June 2019 VA back examination noted the Veteran's back disability interfered with sitting, standing, walking, squatting, and bending. The record indicates that the Veteran's mental ability to perform occupational tasks is impaired by service-connected disability. A January 2016 private treatment record noted the Veteran's lower back pain interfered with employment and relationships. A May 2022 private vocational opinion found that the Veteran is unable to secure and follow substantially gainful employment, to include sedentary unskilled work, regardless of skill or exertional level, due to his service-connected degenerative disc disease of the lumbar spine since at least September 2011 to the present, and his service-connected radiculopathy of the RLE and LLE have further contributed to his inability to secure and follow substantially gainful employment since at least September 2015 to the present. The May 2022 private vocational specialist noted that sedentary employment requires the ability to sit for most of an 8-hour workday, as well as the ability to stand or walk for one-third of a workday. In short, the overall evidence indicates the Veteran possesses no post-service work experience. Additionally, his service-connected disability significantly impairs his ability to sit, walk, or stand for prolonged periods. Additionally, medical evidence persuasively weighs in favor of indicating his service-connected disability impairs his ability to form relationships and interferes with employment. Based on the above, the Board will resolve all doubt in the Veteran's favor and find he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability for the entire period on appeal. For these reasons, and after resolving all doubt in the Veteran's favor, the Board finds that the criteria for a TDIU on an extraschedular basis have been more nearly approximated. The appeal for a TDIU on an extraschedular basis from September 29, 2011 to April 21, 2024 is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stephanie Vang, 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.