Citation Nr: 18142190 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 09-27 872 DATE: October 16, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 20, 2009 is denied. FINDING OF FACT The functional impairment resulting from the Veteran’s service-connected disabilities did not prevent him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him prior to October 20, 2009. CONCLUSION OF LAW The criteria for TDIU are not met prior to October 20, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following a substantially gainful occupation, taking into consideration his education and occupational background. 38 C.F.R. § 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the Agency of Original Jurisdiction (AOJ) can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement, but cannot be granted by the Board or the AOJ in the first instance; it must be submitted to VA’s Director, Compensation Service for initial consideration. 38 C.F.R. § 4.16(b). Although the Board cannot assign an extraschedular TDIU in the first instance, it is not precluded from specifically adjudicating whether to refer a case for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Id. The extraschedular subsection of § 4.16 explains that it is the established VA 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, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection (a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Here, the Veteran did not meet the schedular requirements for TDIU prior to October 20, 2009. Prior to October 20, 2009, the Veteran had a combined 60 percent rating as a result of individual disabilities rated as follows: temporomandibular joint (TMJ) disease of the left mandibular condyle (30 percent disabling); diabetes mellitus, type II (20 percent disabling); tinnitus (10 percent disabling); post-traumatic stress disorder (PSTD) (10 percent disabling); headaches (noncompensable); and erectile dysfunction (noncompensable). Although some of these disabilities are inter-related, there is no combination of disabilities resulting from a common etiology or a single accident that satisfies the requirement of a single disability ratable at 60 percent or more. Thus, TDIU cannot be awarded on a schedular basis prior to October 20, 2009. In August 2017, the Board remanded this matter so the AOJ could adjudicate whether TDIU was warranted on either a schedular or extra-schedular basis prior to October 20, 2009, following the initial adjudication of other intertwined issues. As previously noted, the Veteran has been found not to meet the schedular percentage requirements for TDIU prior to October 20, 2009. The AOJ has also determined referral for extra-schedular TDIU consideration is not warranted for the period prior to October 20, 2009. The Board agrees with the AOJ’s determination that referral for extra-schedular TDIU consideration is not warranted for the period prior to October 20, 2009. The Board notes in August 2017 it found the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him as October 20, 2009. This finding was primarily based on evidence that shows the nerve damage resulting from the Veteran’s service-connected peripheral neuropathy of the bilateral upper and lower extremities prevents him from doing several work-related tasks, such as grasping objects, writing, and moving back and forth between a sitting and standing position; however, the record establishes the Veteran’s peripheral neuropathy was not a service-connected ratable disability prior to October 20, 2009. Thus, the Board cannot consider the functional impairment resulting from peripheral neuropathy prior to that date in its TDIU analysis. Without consideration of peripheral neuropathy, the Board finds the functional impairment resulting from the Veteran’s other service-connected disabilities was insufficient to warrant extra-schedular consideration. There is no medical evidence that suggests the functional impairment resulting from TMJ disease, diabetes, tinnitus, PTSD, headaches, and erectile dysfunction or the combined effects of these disabilities was severe enough to prevent employment in the Veteran’s case prior to October 20, 2009. VA examiners have consistently maintained the functional impairment from these disabilities has never been sufficient to prevent the Veteran from performing occupational tasks, and the opinions of the Veteran’s treating physicians describe nerve damage resulting from peripheral neuropathy as the primary driver of his unemployability. TMJ disease and tinnitus did not prohibit the Veteran’s ability to communicate effectively. Although the Veteran indicated his diabetes required restriction of physical activities in his July 2009 substantive appeal, he later testified at the January 2011 hearing that he had not yet been restricted for activities. A May 2009 VA examiner also stated that the Veteran’s activities were not restricted for diabetes and that his life and activities had not been altered due to hypoglycemia. His PTSD was shown to result in mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, and a September 2010 VA examiner opined that the Veteran’s PTSD symptoms did not preclude gainful employment. His headaches resulted in very infrequent prostrating attacks, occurring less than one in two months on average. Erectile dysfunction had little to no effect on the Veteran’s ability to work. Although the functional impairment resulting from the Veteran’s service-connected disabilities prior to October 20, 2009 is notable, it was not severe enough to preclude gainful employment. While there is no doubt there was some decrease in work efficiency prior to October 20, 2009 due to TMJ disease, diabetes, tinnitus, PTSD, headaches, and erectile dysfunction, the record reflects the Veteran continued to work through July 2009, so the opinions provided by medical professionals when viewed in light of the ratings assigned for the various service-connected disabilities are consistent with the Veteran’s actual work history. Thus, the Board finds this is not an instance in which referral for extra-schedular consideration is warranted. In reaching this conclusion, the Board fully acknowledges there was an approximate two-and-half month period in which the Veteran was not working and has not been assigned a TDIU (i.e., August 2009 through October 2009); however, the relevant issue is not whether the Veteran was unemployed but rather whether his service-connected disabilities prevented him from performing the physical and mental acts required for employment. The Board reiterates the Veteran was not entitled to a rating for peripheral neuropathy during this period, which has been shown to be the primary factor in his present unemployability. As a result, the Board finds the functional impairment resulting from the Veteran’s service-connected disabilities did not prevent him from securing or following substantially gainful employment for which his education and occupational experience would otherwise qualify him prior to October 20, 2009, rendering a referral for consideration of TDIU on an extra-schedular basis unnecessary, and, to that extent, the Veteran’s appeal is denied. John L. Prichard Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel