Citation Nr: 20021624 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-35 472 DATE: March 26, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. FINDING OF FACT The probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability, given his educational background and occupational experience. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disability, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to May 1988. Entitlement to TDIU Total disability ratings for compensation based on individual unemployability 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 determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. The Veteran contends that he is not capable of substantially gainful employment due to the functional impairment caused by his service-connected disabilities. In this case, the Veteran is service connected for a right shoulder disability rated at 20 percent, peripheral neuropathy of the bilateral feet rated at 20 percent each, left hip strain rated at 10 percent and residual scar of the right shoulder which is noncompensable. His combined rating is 60 percent from July 2019. Prior to that time, his combined disability rating was 20 percent as he was only in receipt of service connection for his right shoulder disability. He therefore does not meet the scheduler requirements for TDIU under 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the Board must consider whether or not the Veteran is rendered unemployable due to his service-connected disabilities so as to warrant referral for extra-schedular consideration for TDIU under 38 C.F.R. § 4.16(b). In his January 2019 TDIU application, the Veteran alleges that he last worked in 2018 as an aviation mechanic and since that time has been incapable of sustaining substantially gainful employment due to his service-connected disabilities. The TDIU application also notes the Veteran’s education level includes two years of college and additional training related to his line of work. In an April 2019 request for employment information in connection with his claim for TDIU, the Veteran indicated he was “presently working.” A July 2019 VA treatment record notes the Veteran is currently working as engine mechanic and “on his feet 10 hours at a time.” In July 2019 the Veteran was treated for left foot pain and indicated he wanted to return back to work “because he has already taken a lot of time off.” There is no evidence of record to indicate the Veteran has missed significant periods from work as a result of his service-connected disabilities. The September 2019 VA hip and thigh examination also shows the Veteran is diagnosed with left hip strain, but it does not affect his ability to work. Additionally, in September 2019 the Veteran received a VA peripheral nerves and a VA cold injury examination in which both examiners note the diagnosed disabilities do not impact the Veteran’s ability to work. The probative evidence or record does not demonstrate that the Veteran’s service-connected right shoulder, bilateral foot, and/or left hip disabilities, when considered in association with his educational attainment and occupational background, renders him unable to secure or follow a substantially gainful occupation. The evidence demonstrating that the Veteran is presently employed and the multiple opinions of record as to his ability to work are found to be persuasive. Absent probative evidence that the Veteran’s service-connected disabilities alone prevent him from obtaining and following substantially gainful employment, there is no basis to refer the Veteran’s TDIU claim for extraschedular consideration. The claim for a TDIU rating must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon 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.