Citation Nr: 18153544 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-50 963 DATE: November 28, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 15, 2016 is denied. FINDING OF FACT The competent and probative evidence does not show that the Veteran is unemployable as a result of his service-connected disability prior to July 15, 2016. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU have not been met prior to July 15, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1969 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In the October 2014 rating decision, the RO denied the Veteran’s claim for increased rating for posttraumatic stress disorder (PTSD) and TDIU. The Veteran appealed the rating in a November 2014 notice of disagreement (NOD). After a July 2016 VA examination for PTSD, the RO granted the Veteran’s claim for increased rating for PTSD and granted the Veteran’s claim for TDIU effective July 15, 2016, the date Veteran met the schedular requirement for TDIU. The RO issued a statement of the case (SOC) denying TDIU prior to July 15, 2016 and the Veteran filed a substantive appeal regarding the claim of TDIU. The Veteran did not request a Board hearing. 1. Entitlement to TDIU prior to July 15, 2016. The Veteran asserts that he is entitled to a TDIU rating prior to July 15, 2016. TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside of the norm. The sole fact that he or she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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 (1993). A veteran who fails to meet these percentage standards may still qualify for an extraschedular TDIU rating under 38 C.F.R. § 4.16 (b). Under that provision, VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). It is the established policy of VA 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. 38 U.S.C. § 4.16. Therefore, at the RO level, rating boards are to submit to the Director of Compensation Service (Director), for extraschedular 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 38 C.F.R. § 4.16 (a). The RO is to include in its submission a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board itself cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). However, the Board can adjudicate whether to refer a case to the Director for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once the Board properly refers an extraschedular rating issue to the Director for review, an appellant may “continue to appeal the extraschedular rating aspect of this claim”); see also 38 U.S.C. §§ 511 (a), 7104(a) (“All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board”). In this case, prior to July 15, 2016, the Veteran was service-connected for PTSD, rated as 50 percent disabling. As the Veteran’s combined disability rating for his service-connected disability is 50 percent, the Veteran is not entitled to a TDIU under 38 C.F.R. § 4.16 (a) as a matter of law. Accordingly, the only remaining question is whether referral for extraschedular TDIU is warranted under 38 C.F.R. § 4.16 (b). In a May 2013 private mental health evaluation, the medical provider stated that the Veteran’s work history included working in a gas station, installing cable television, repairing pneumatic snap on tools, driving trucks for 27 years, and working in maintenance with a national retail company. The Veteran stated that after termination from the retail company he used unemployment insurance and worked various odd jobs. The medical provider concluded that the Veteran had a long and checkered work history. The medical provider stated that the Veteran, “would get a truck driving job, work for a while, get upset, and quit.” In a December 2013 VA treatment record the Veteran stated that his PTSD symptoms have made it somewhat difficult for him to do his work, take care of things at home, or get along with other people. In an April 2014 VA treatment record the medical provider indicated that the Veteran had PTSD with symptoms of random intrusive thoughts, hypervigilance, hyper-startle, hyperarousal with social and crowd avoidance, and irritability. The Veteran stated that it was somewhat difficult for him to do his work, take care of things at home, or get along with other people. The Veteran reported that his longest held job was in maintenance with a national retail company for five years. In an August 2014 employer response for information in connection with claim for disability, the Veteran’s prior employer, a national retail company, indicated that the Veteran was employed form August 2005 to December 2009 and performed work in maintenance. The employer indicated that the Veteran was terminated for gross misconduct. On the employer’s exit interview with the Veteran, the Veteran’s manager commented that the Veteran was terminated as the result of a verbal assault of another employee. In the August 2013 Board hearing, the Veteran confirmed that he was terminated from his employment with the retail company when he had a verbal altercation with someone at work. Board Hearing Transcript (T.) at 17. In an April 2015 VA treatment record, the medical provider indicated that the Veteran had PTSD with symptoms of disrupted sleep, re-experiencing, hyper-startle, avoidance, anger, anxiety, depression, nightmares, and flashbacks. The Veteran stated that these symptoms have made it very difficult for him to do his work, take care of things at home, or get along with other people. The Board finds that the evidence does not support a finding that the Veteran was unable to obtain or maintain employment due to his service-connected PTSD prior to July 15, 2016. From 2005 to 2009, the Veteran was employed in maintenance with a national retail chain. He was terminated from employment for willful misconduct. The record does not demonstrate that the Veteran was terminated as a result of his service-connected disorder or that he was unable to secure or maintain employment as a result of his PTSD, a mental inability to perform tasks, or physical inability to perform tasks. Although there are functional limitations due to his PTSD, such as reduced reliability and productivity, this does not prevent performance of physical or mental tasks. The Veteran does not meet the percentage criteria under 38 C.F.R. § 4.16 (a), and the preponderance of the evidence shows that his service-connected disability does not render him unable to secure and follow a substantially gainful occupation. Further, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran’s service-connected disability does not present such an exceptional disability picture that the available schedular evaluations are inadequate. The record reflects that the Veteran’s service-connected PTSD is significant, as recognized by the 50 percent rating assigned prior to July 15, 2016. However, the record shows that the Veteran was capable of performing simple repetitive tasks in maintenance and some skilled tasks with truck driving, tool repair, and cable installation. There is no indication in the record that the Veteran was mentally or physically unable to perform simple tasks. Therefore, there is insufficient evidence to conclude that the Veteran’s education, training, and experience precludes him from securing and maintaining all forms of substantially gainful employment. Thus, referral to the Director of Compensation and Pension Service is not warranted, and entitlement to TDIU prior to July 15, 2016 must be denied. See 38 C.F.R. § 4.16 (b). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim for TDIU prior to July 15, 2016, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K.A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel