Citation Nr: 1753832 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-08 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 28, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Subsequently, jurisdiction over the Veteran's claims file was transferred to the RO in Oakland, California. This matter was previously remanded by the Board in October 2015 and again in October 2016 for issuance of a statement of the case (SOC). As the previously requested development has been completed and the Veteran has perfected his appeal, the matter is properly returned to the Board for further adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, it appears that the RO has not yet implemented the Board's October 2015 grant of an increased 100 percent disability rating for MDD, effective May 28, 2010. While the Board has properly considered the claim during the relevant appeal period as stated herein, the RO is advised of the necessity of implementing the proper effective date of the Veteran's 100 percent disability rating for MDD, effective May 28, 2010. FINDING OF FACT Prior to May 28, 2010, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met prior to May 28, 2010. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a decision, it is necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2017); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran's TDIU claim on appeal arose in the context of his claim of entitlement to an increased disability rating for major depressive disorder (MDD) that was received by VA on January 25, 2008. During the relevant appeal period therefrom until May 28, 2010, the Veteran was service-connected for MDD (rated as 50 percent disabling from January 22, 2008 and as 70 percent disabling from December 16, 2009), tinnitus (rated as 10 percent disabling from June 27, 2008), and tinea pedis and facial acne (each rated as noncompensable, from November 9, 2004 and November 9, 2006, respectively). Based upon the above, the Veteran's combined disability rating during the relevant rating period is 50 percent from January 22, 2008, 60 percent from June 27, 2008, and 70 percent from December 16, 2009. As such, he meets the schedular criteria for a TDIU rating from December 16, 2009, but not prior to that date. See 38 C.F.R. § 4.16(a). While failure to meet the schedular percentage requirements does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b); as discussed below, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation at any time during the appeal period from January 25, 2008 through May 28, 2010. In the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he indicated it was his MDD that prevented him from working. He wrote he becomes too disabled to work as of January 25, 2008, but stopped working on September 25, 2008, and had two years of college. Upon psychiatric evaluation in January 2008, the Veteran reported that immediately after returning from active service in 2004, he obtained a full-time job and later returned to school full-time. In February 2008, the Veteran was attending school full-time and looking for a job at night; upon VA examination that same month, he reported that he previously was employed with as a pizza delivery person, but was no longer working there. The VA examiner noted that the Veteran had held jobs for a fair period of time in the past, and although he had been unable to find a job in the university setting, he was seeking outside employment. In July 2008, the Veteran reported at a follow-up mental health visit that he currently worked as a motel clerk on the graveyard shift. In September 2008, he reported that he had enough money to quit his job and go to school full-time again. Following the school year, in the summer of 2009, the Veteran began working five days per week as a cab driver. In November 2009, he reported that he continued to work full-time as a cab driver, but that he was hoping to find a job as a pizza delivery person. Upon follow-up in January 2010, the Veteran continued to work full-time as a cab driver while he looked for another job; in March 2010, the Veteran switched to working a day shift as a cab driver. In May 2010, the Veteran reported that he had worked as a cab driver for nine months, although he expressed some concern that he may be fired because some customers requested that he no longer drive for them and he continued to seek employment elsewhere. At that time, he reported that he had been fired from previous employment at Domino's pizza after two years and also at Motel 6 after only a few months (the 21-8940 shows he worked at Motel 6 for 6 months). Based upon the evidence discussed above, the Board finds that the preponderance of evidence weighs against the Veteran's TDIU claim for the entire period on appeal. Significantly, the Veteran was able to obtain and retain employment in various settings for extended periods of time during the appeal period up until he was awarded a 100 percent schedular rating for MDD, and he also attended school on a full-time basis. Given the above, the Board concludes that referral for consideration of a TDIU rating on an extraschedular basis is not warranted for the period prior to December 16, 2009, and TDIU is not warranted as of that date, and therefore, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). ORDER A TDIU rating prior to May 28, 2010 is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs