Citation Nr: 20023648 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 09-03 111 DATE: April 7, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, prior to May 18, 2011, is denied. FINDING OF FACT For the time period prior to May 18, 2011, the preponderance of the evidence weighs against finding that his service-connected disabilities precluded the Veteran from obtaining and maintaining substantial gainful employment. CONCLUSION OF LAW Prior to May 18, 2011, the criteria for TDIU, including extraschedular TDIU, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1969 to November 1970. The Board notes that this case was remanded previously in January 2017, when the Board referred the Veteran’s claim to the VA Director of Compensation Service (Director) for consideration of entitlement to TDIU on an extraschedular basis. The issue of entitlement to a TDIU was again remanded in January 2018 to obtain Social Security Administration (SSA) records. As both have been completed, the matter now returns for further appellate review. Entitlement to TDIU prior to May 18, 2011. The Veteran contends that, prior to May 18, 2011, he was unable to maintain employment mainly due to his service-connected hepatitis C and tinnitus, and posttraumatic stress disorder (PTSD), which was service-connected from May 18, 2011, but not prior. See Appellate Brief (December 2016). The Board concludes that the preponderance of the evidence is against an award of TDIU, to include on an extraschedular basis. prior to May 18, 2011. To establish TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation due solely to the appellant’s service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16. Consideration is given to the veteran’s level of education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991); 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, 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 the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the veteran’s schedular rating is less than total, a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more, or 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. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Where the percentage requirements are not met, entitlement to 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, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board may submit those cases to the Director of the VA Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Veteran did not meet the schedular requirements for TDIU because his combined disability rating was 10 percent prior to May 18, 2011. See 38 C.F.R. § 4.16(a). Additionally, the Board finds that TDIU was not warranted on an extraschedular basis because the evidence does not demonstrate that it is more likely than not the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities alone prior to May 18, 2011. 38 C.F.R. § 4.16(b). The record shows that prior to May 18, 2011, the Veteran was service connected for tinnitus (10%); hepatitis C (0%), bilateral hearing loss (0%), and hypertension (0%). His combined disability rating was 10 percent. The Veteran contends that he could work due to his hepatitis C and tinnitus, as well as PTSD, which was not service connected prior to May 18, 2011. VA treatment records from March 2008 show that he had excellent speech recognition with his moderate high frequency hearing loss. At the November 2008 and July 2011 VA examinations for hepatitis C with elevated liver enzymes, the examiners noted no significant effects on activities of daily living and occupation. The July 2011 VA examination provided that the Veteran last worked in 1998 and retired due to the swelling of the lower extremities which was not found to be caused by hepatitis C. While in July 2010 hearing problems were noted, in September 2010, the Veteran denied hearing problems. With regard to hypertension, VA treatment records, including in November 2007 and October 2008, showed that the Veteran had no complaints and good compliance with medications to control his hypertension. See CAPRI (November 2019). The Board has carefully considered whether the Veteran’s service-connected disabilities, including hepatitis C and tinnitus as claimed by the Veteran, precluded employment prior to May 18, 2011. However, the Board observes that the VA treatment records show no ongoing care for or complaints of hepatitis C or tinnitus, and no indication that it poses severe functional limitations on performing the mental and physical acts required for substantially gainful employment. Along the same lines, medical records reflect no indication that additional or changes to pain medications were needed for control of hepatitis C, tinnitus, hypertension or hearing loss, which were the only service-connected disabilities prior to May 18, 2011. Therefore, the Board finds that the Veteran’s statements that his service-connected hepatitis C and tinnitus were so severe to preclude employment is incongruous with the absence of regular treatment or complaints. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, neither the lay nor the medical evidence reflects that service-connected disabilities interfere with the Veteran’s abilities to perform the activities of daily living, to travel, to ambulate freely and unencumbered, or to use his extremities. Neither the lay nor the medical evidence reflects that hepatitis C, tinnitus, hearing loss and hypertension, and medications therefor caused any impairment of the mind, to include thinking, focus, concentration, or attention. The Veteran’s tinnitus and hearing loss result in hearing barrier to learning, but this does not preclude the ability to write, read, grasp utensils or drive. VA and private treatment records reflect that hypertension and hepatitis C do not preclude his ability to ambulate, drive or work with automobile parts as he did prior to leaving his employment. The record shows that the Veteran has employment history as a technician working with hydraulics and machining equipment, and high school education. See VA Memo (August 2017). He was in composite type job, and worked mainly autonomously and performed testing, creating test and improvisation of parts for automobiles. See Medical Treatment Records – Furnished by SSA (November 2019). After working as such for 23 years, he left his employment as a result of his rotator cuff tear in October 2007. See VA Memo (August 2017). The Veteran reported that he has been unemployable since 2005 due to his PTSD, tinnitus and hepatitis C. See Miscellaneous C&P Correspondence. However, while the Board accepts that the Veteran is unable to perform his past employment and that his service-connected disabilities interfere with his earning capacity, interference with employment is not the equivalent of precluding employment. Significantly, a July 2008 VA examination revealed the Veteran’s reports of being disciplined in his work-place due to difficulties with supervisors and coworkers. It is noteworthy that the Veteran was not service-connected for PTSD until May 19, 2011, and the effects of now service-connected PTSD cannot be considered in determining whether entitlement to TDIU on extraschedular basis is warranted in this case. SSA records also show that the Veteran had difficulty working for many years due to psychiatric symptoms, for which he was not service connected until May 19, 2011. The Board finds that this evidence strongly weighs against finding the Veteran was precluded from performing the mental and/or physical acts required to obtain and retain any type of substantially gainful activity based upon his service-connected disabilities, namely hepatitis C, tinnitus, hearing loss and hypertension. In sum, the evidence fails to show that his service-connected hepatitis C, tinnitus, hearing loss and hypertension precluded substantially gainful employment. The weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). AMANDA E. H. GIBSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.