Citation Nr: 21001113 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-12 952 DATE: January 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 11, 2015, including on an extraschedular basis, is denied. FINDING OF FACT Prior to September 11, 2015, the Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW Prior to September 11, 2015, the criteria for entitlement to a TDIU due to service-connected disabilities, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1971. This matter was previously before the Board of Veterans’ Appeals (Board) in September 2019 and was remanded for additional development, which has been completed. In June 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability and special monthly compensation since September 2019. As an initial matter, the Board notes that, during the pendency of the appeal, a September 2019 rating decision granted the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder and assigned a disability rating of 100 percent, effective September 11, 2015. In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. If the Veteran’s TDIU rating is based on a combination of his service-connected disabilities, (which would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability, in turn making the Veteran eligible for special monthly compensation. If, however, he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot, because he has already met that portion of the requirement for special monthly compensation. See Bradley, 22 Vet. App. at 294. Here, the Veteran is in receipt of a 100 percent disability rating for his service-connected psychiatric disorder. Therefore, the issue of entitlement to a TDIU after September 11, 2015 is moot. However, the issue of entitlement to a TDIU prior to September 11, 2015, is presently before the Board and will be addressed herein. Entitlement to a TDIU prior to September 11, 2015 The Veteran contends that his service-connected disabilities prevent him from obtaining substantial gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that 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). Prior to September 11, 2015, the Veteran was service connected for the following: • Diabetes mellitus, rated as 20 percent disabling from September 8, 2008; • Tinnitus, rated as 10 percent disabling from September 8, 2009; • Peripheral neuropathy, right upper extremity associated with diabetes mellitus, rated as 10 percent disabling from September 8, 2009; • Peripheral neuropathy, left upper extremity associated with diabetes mellitus, rated as 10 percent disabling from September 8, 2009; • Peripheral neuropathy, left lower extremity associated with diabetes mellitus, rated as 10 percent disabling from September 8, 2009; • Peripheral neuropathy, right lower extremity associated with diabetes mellitus, rated as 10 percent disabling from September 8, 2009; and • Bilateral hearing loss, rated as 0 percent disabling from September 8, 2009. From September 8, 2009 to September 11, 2015, the Veteran’s combined disability evaluation for compensation was 60 percent and he did not have any disabilities rated at 40 percent or more. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time prior to September 11, 2015. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU on a schedular basis must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected disabilities nonetheless result in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, the question becomes whether these disabilities, in and of themselves, precluded the Veteran from securing or following a substantially gainful occupation prior to September 11, 2015. The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16 (b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. In this regard, the Board has no authority to award TDIU under § 4.16 (b) in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996)). Rather, the Board’s focus in this part of the current appeal is whether the Veteran meets the criteria for a referral of his claim to the Director, Compensation System, for extraschedular consideration. See 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board is charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Given the above criteria, the Board finds that the preponderance of the evidence shows that the Veteran does not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16 (b) at any time during the pendency of the appeal. See Owens, 7 Vet. App. at 433. This finding does not suggest, in any way, that the Veteran did not have some occupational problems because of his service-connected disabilities (i.e. diabetes mellitus, peripheral neuropathies, tinnitus, and bilateral hearing loss); if he did not have any problems, there would be no basis for any compensation. The only question is whether his service-connected diabetes mellitus, peripheral neuropathies, tinnitus, and bilateral hearing loss standing alone, caused him not to work. The Veteran stated that his PTSD was amplified after retirement from his job as an investigator in February 2012. See February 2016 NOD. The Veteran also noted that his PTSD prevented him from securing or following any substantially gainful employment on his August 2015 VA Form 21-8940. Taken together, the Board finds that his service-connected diabetes mellitus, peripheral neuropathies, tinnitus, and bilateral hearing loss were not of sufficient severity to produce unemployability. Given the above, the Board finds the most probative medical evidence of record shows that the Veteran’s service-connected disabilities (i.e. a diabetes mellitus, peripheral neuropathies, tinnitus, and bilateral hearing loss) do not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16 (b). See Owens, 7 Vet. App. at 433. Therefore, the Board finds that the claim for a TDIU is denied. 38 C.F.R. § 4.16. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.