Citation Nr: 21000152 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-28 258 DATE: January 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 5, 2015, is denied. FINDING OF FACT Prior to June 5, 2015, the Veteran’s service-connected disabilities do not meet the requisite schedular percentages for entitlement to a TDIU; the evidence of record does not demonstrate the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for this time period. CONCLUSION OF LAW Prior to June 5, 2015, the criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1978 to March 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 and April 2020, the Board remanded the claims of entitlement to service connection for radiculopathy/neuropathy of the bilateral lower extremities and entitlement to a TDIU. In an October 2020 rating decision, entitlement to service connection for radiculopathy of the bilateral lower extremities was granted. As such, this issue is no longer on appeal. Also, as part of the October 2020 rating decision, entitlement to a TDIU was granted, effective June 5, 2015. Because the RO did not grant entitlement to a TDIU for the entire period on appeal, the issue of entitlement to TDIU, prior to June 6, 2015, is properly before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to a TDIU, prior to June 5, 2015. As noted, the RO granted entitlement to a TDIU, effective June 5, 2015. The Veteran seeks entitlement to a TDIU, prior to June 5, 2015. A total disability rating 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, provided that, if there is only one such disability, this disability shall be ratable 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. See 38 C.F.R. § 4.16 (a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). Prior to June 5, 2015, the Veteran is service connected for: migraines, rated as 30 percent disabling effective November 2011; status-post hemorrhoidectomy with internal and external hemorrhoids, rated as noncompensable effective July 2011, and as 20 percent disabling, effective November 2011; tinnitus, rated 10 percent disabling, effective November 2011; and hypertension rated 10 percent disabling effective November 2011. The Veteran has a combined rating of 0 percent, effective July 2011, 60 percent, effective November 2011, and 80 percent, effective June 2015. Because the Veteran did not have a single service-connected disability rated at 60 percent or higher, or a service-connected disability rated at 40 percent or higher, with a combined rating of 70 percent or higher, the percentage requirements for schedular entitlement to TDIU were not satisfied, prior to June 5, 2015. See 38 C.F.R. § 4.16(a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. For the following reasons, the Board finds the Veteran was not unemployable for TDIU purposes, prior to June 5, 2015, and therefore referral for extraschedular consideration of entitlement to TDIU is not warranted. See 38 C.F.R. § 4.16 (b). In Ray v. Wilkie, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant's “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The Board first considers the economic component. As indicated in the Veteran’s VA Form 21-8940, he worked from 1987 to September 2011 as a manager, earning approximately $3,500 a month and stopped working due to his service-connected disabilities in September 2011. As such, the Board finds the evidence indicates the Veteran was unemployed from September 2011. However, it must still be determined whether his service-connected disabilities caused unemployability. That determination requires consideration of the noneconomic component of TDIU. In this regard, the Board finds that in light of the Veteran's occupational history, education, skill, and training, his service-connected disabilities did not sufficiently impair his physical or mental ability to perform employment such that he was unable to secure or follow a substantially gainful occupation, prior to June 5, 2015. Turning to the evidence, the Veteran’s VA Form 21-8940, received in April 2010, indicated he last worked as a manager for more than 20 years. He indicated he completed three years of college education. On the application, the Veteran reported that all his service-connected disabilities affected his employment. As discussed previously, prior to June 5, 2015, the Veteran was service connected for migraines, status-post hemorrhoidectomy with internal and external hemorrhoids, tinnitus, and hypertension. Of note, during a January 2013 VA examination, the Veteran reported that his back disorder did not let him perform his job and that he had to stop working due to pain in his knees and back. The Veteran also submitted a private medical opinion in November 2011 indicating that due to his back pain, knee pain, and psychiatric disorder, the Veteran could no longer tolerate prolonged sitting or standing positions, he had restriction of his daily activities and social functioning, and was not involved in household tasks. Importantly, however, service connection for the Veteran’s psychiatric disorder, lumbar spine disability, bilateral knee disability, and radiculopathy of the bilateral lower extremities was not established prior to June 6, 2015. Regarding the Veteran’s hemorrhoids, tinnitus, and hypertension, there is no evidence that these service-connected disabilities prevented the Veteran from obtaining or maintaining employment, prior to June 2015. In fact, during January 2013 VA examinations, it was noted that these disabilities had no functional impact. Furthermore, the Veteran has not submitted any statements describing the effects of these disabilities on his employment. The Board acknowledges that the November 2011 private physician reported that the Veteran had two to three migraines a month, which lasted one or two days, and required him to lay down with the lights out. Additionally, during the January 2013 VA examination, it was noted that the Veteran’s migraines impacted his work in that he was unable to work during a flare-up, which was about once a month. However, the Board finds that any impact on his employability due to his migraines is accounted for in the Veteran’s 30 percent disability rating for this time period and does not rise to the level required for a TDIU. The evidence indicates that the Veteran’s migraines impaired his ability to work, prior to June 2015, but there is no persuasive evidence that the level of impairment caused unemployability. The preponderance of the evidence weighs against a finding that the Veteran did not have the physical or mental ability to secure or follow a substantially gainful occupation due to service-connected disabilities, prior to June 5, 2015. The Veteran himself cited back pain and knee pain as the primary reasons why he could no longer work and had stopped working. The private medical opinion he submitted in November 2011 also indicated that his back, knees, and psychiatric disorder affected his ability to work. Prior to June 5, 2015, the Veteran was not service connected for these disabilities. He did not state, and the evidence does not otherwise show, that the service-connected disabilities of migraines, hypertension, hemorrhoids, or tinnitus caused functional impairment, prior to June 2015, to a degree that caused him to be unable to secure or follow a substantially gainful occupation. In sum, the Board finds that the evidence does not establish that the Veteran was unemployable due to service-connected disabilities, prior to June 5, 2015. Thus, referral of the case to the Director of Compensation Service for extraschedular consideration is not warranted. The preponderance of the evidence is against a finding of unemployability, prior to June 5, 2015; the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, Counsel 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.