Citation Nr: 21000993 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-04 708 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for a TDIU and the criteria for referral on an extraschedular basis have not been met. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1951 to June 1953 and from June 1956 to June 1959. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, December 2016, and September 2017, the Board remanded the case for further development. A February 2019 Board decision denied the Veteran’s claims for service connection for a back disability and a TDIU. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 memorandum decision, the Court set aside the February 2019 denials for service connection for a back disability and a TDIU and remanded the matters to the Board for further proceedings. In a November 2020 decision, the Board granted service connection for a back disability. Moreover, the Board remanded the Veteran’s claim for a TDIU, noting the issue be deferred pending the assignment of a disability rating and effective date for the grant of service connection for a back disability. Accordingly, the matter has been returned to the Board for adjudication. Entitlement to a TDIU A TDIU rating 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 service-connected disabilities, provided at least one 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling; mild lumbar myositis, rated as 10 percent disabling prior to August 31, 2016, and 20 percent disabling thereafter; and bilateral hearing loss, rated as 10 percent disabling. His combined rating is 40 percent, prior to August 31, 2016, and 50 percent thereafter. 38 C.F.R. § 4.25. Therefore, he does not meet the criteria for a schedular TDIU at any point during the appellate period. Where these 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 or her employment and educational history. 38 C.F.R. § 4.16(b). The central inquiry is determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. The Veteran’s November 2010 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, indicates that the Veteran became too disabled to work in 1988. Prior to that, the Veteran reported that he was a fireman from 1963 to 1988. Although the Veteran indicated on his VA Form 21-8940 that he left his last job because of his disabilities, the VA examinations of record indicate that he retired from his previous employment in 1988 and list the cause of his retirement as “eligible by age or duration of work.” See November 2018 VA psychiatric examination at 3; see also July 2011 VA psychiatric examination at 9. The Board emphasizes that the mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In other words, the fact that the Veteran was able to maintain employment up until retirement shows that he is capable of performing the physical and mental acts required by employment. Moreover, the Board finds that the Veteran’s service-connected disabilities are not productive of total unemployability. The VA examinations conducted during the pendency of the appeal found that the Veteran’s service-connected disabilities do not interfere with his ability to maintain gainful employment. Specifically, the October 2012, August 2016, and November 2018 VA examiners opined that the Veteran’s back disability does not impact his ability to work. Additionally, the July 2011 and March 2012 VA examiners opined that the Veteran’s PTSD symptoms do not interfere with occupational and social functioning, to include performance of duties on the job. While the Board does not doubt that the Veteran’s service-connected disabilities had some effect on his employability, the evidence of record weighs against the contention that his service-connected disabilities alone are of such severity so as to preclude his participation in any form of substantially gainful employment. To the extent that his service-connected disabilities impact employment, the assigned schedular rating compensates the Veteran for such impairment. (CONTINUED ON NEXT PAGE) In sum, considering the Veteran’s medical records and VA examination reports and the discussion of symptomology contained therein as well as the lay statements of record, the Board finds the evidence weighs against a finding that the Veteran’s service-connected disabilities prevent substantially gainful employment. Thus, the Board finds that the evidence of record does not indicate that additional development of the claim for a TDIU, to include referral on an extraschedular basis, is warranted. See 38 C.F.R. § 4.16(b). Accordingly, the claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.