Citation Nr: 21001222 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-35 101A DATE: January 7, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is precluded from obtaining and securing substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to April 1970. 1. Entitlement to a total disability rating due to individual unemployability (TDIU) The Veteran’s claim for entitlement to a TDIU was considered raised by the record and considered part of his claim for increased rating for posttraumatic stress disorder (PTSD) disability in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). See September 2020 Board decision and remand. During his December 2018 Board hearing, the Veteran testified that his PTSD disability impacted his ability to work, and he report that he stopped working after he suffered a flashback of his Vietnam service during a meeting with his co-workers. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. § §§ 3.340, 3.341, 4.16. Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. § §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 4.16 (a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, a claim that meets the criteria for referral for consideration of entitlement to a TDIU rating on an extraschedular basis must be referred to the Director of Compensation Service for consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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. See 38 C.F.R. § 4.16 (a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s claim for a TDIU rating arises from his increased rating claim which was filed in January 2012. Throughout the pendency of appeal, the Veteran meets the preliminary schedular criteria for entitlement to a TDIU rating, as he has been in receipt of service connection for PTSD disability rated as 70 percent disabling and tinnitus disability rated as 10 percent disabling. His service-connected disabilities have a combined evaluation of 70 percent throughout the appeal period. Based upon a review of the record, the Board concludes that the evidence does not show that the Veteran had been rendered unemployable by reason of his service-connected disabilities. Pursuant to the Board’s September 2020 remand, the RO requested that the Veteran complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. No response to this request has been received from the Veteran, and his failure to provide the requested information was noted in the RO’s November 2020 Supplemental Statement of the Case. Nevertheless, the Board has attempted to piece together his education and employment history through various statements made during the pendency of the appeal. In this respect, the record shows that the Veteran had completed a high school education and was trained as auto mechanic. He retired from his employment position in maintenance with a metropolitan transportation service in 2002. He last worked as a bus transportation supervisor. See February 2004 VA treatment record. During a February 2009 VA PTSD examination the Veteran reported that he has retired after 29 years when he and others had was offered “an early out at that time.” A review of the remaining evidence of record does not suggest that the Veteran was precluded from obtaining and securing substantially gainful employment as a result of his service-connected disabilities. In this regard, while the Veteran has reported that his tinnitus disability interferes with his ability to understand conversations with others, he has not asserted that his tinnitus disability has significantly impacted his ability to work. Moreover, no medical professional has indicated that the Veteran’s tinnitus precludes his ability to work. With respect to the Veteran’s PTSD disability, the competent evidence of record demonstrates that his symptomatology includes depressed mood; mild memory loss, such as forgetting names, directions, or recent events; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. The Veteran has described incidents of anger outbursts and impaired impulse control, that included threatening his 12 year old grandson. The Veteran and his wife testified at the Board hearing that the Veteran has obsessional rituals of checking the house at night. The Veteran also indicated at the hearing that he has occasional suicidal thoughts. Pertinently, both the January 2013 and March 2020 VA examiners concluded his PTSD resulted only in occupational and social impairment with reduced reliability and productivity. No medical or vocational provider has indicated that the Veteran’s PTSD disability precludes his ability to engage in employment. The Board finds that the overall disability picture does not indicate that the Veteran’s psychiatric symptoms, to include daily intrusive thoughts, difficulty adapting to stressful situations, and difficulty in social settings, are of sufficient severity to produce unemployability at any time during the pendency of the appeal. Importantly, the question of employability is ultimately a legal one, not a medical one. Upon review, the Board finds the preponderance of the evidence, described above, does not show the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Notably, the Veteran himself, when reporting his retirement to his treating medical providers, did not assert his retirement was the result of his psychiatric and/or tinnitus symptoms. Other than his statements made during his December 2018 Board hearing, he has not specifically asserted that he is no longer able to work due to his service-connected disabilities. Moreover, the competent medical evidence does not demonstrate unemployability due to the Veteran’s service-connected disabilities at any point during the pendency of the appeal. Therefore, entitlement to a TDIU is not warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.