Citation Nr: 21003827 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-07 592 DATE: January 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to April 25, 2012 is denied. FINDING OF FACT Prior to April 25, 2012, the Veteran did not meet the schedular criteria for a TDIU. CONCLUSION OF LAW Prior to April 25, 2012, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities were not met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969, including service in the Republic of Vietnam, and his decorations include a Bronze Star Medal with Combat “V” Device for valor. In September 2017, the Veteran testified at a Board hearing before the undersigned VLJ. The Board remanded the issue of TDIU prior to April 25, 2012 to consider whether the Veteran’s claim of entitlement to a TDIU prior to April 25, 2012 should be submitted to the Director, Compensation service for extraschedular consideration. The RO denied that extraschedular consideration was warranted. The claim has returned for further appellate consideration. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to April 25, 2012. A TDIU 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 due a single service-connected disability ratable at 60 percent or more, or due to two or more disabilities, provided at least one disability 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Prior to April 25, 2012, the Veteran is assigned a 30 percent rating for posttraumatic stress disorder and major depression – moderate and recurrent from June 7, 2010; a 20 percent rating for diabetes mellitus, type II with bilateral cataracts from December 17, 2007; and a 10 percent rating for tinnitus from June 7, 2010. Based on VA examination reports and an October 2016 VA Form 21-8940, the Veteran has a history of working as a truck driver. In this form, he reported he last worked in 1992, though an exact date was not reported. VA treatment records also reflect that he retired in 1992. The VA Form 21-8940 shows the Veteran’s educational background as having an 8th grade education. Following a careful review of the lay and medical evidence, the Board finds that prior to April 25, 2012, a TDIU is not warranted. In reaching this determination, the Board notes that the Veteran reported his nonservice connected colon removal and need to wear a colostomy bag as the reason for his termination of unemployment in the January 2017 Request for Employment Information in Connection with Claim for Disability. The October 2016 VA 21-8940 references the Veteran’s service-connected diabetes and bilateral lower neuropathy as conditions preventing him from securing or following a substantially gainful employment. Upon further review of the record, the evidence does not reflect that the Veteran’s service-connected diabetes type II with bilateral cataracts and psychiatric disabilities alone were of sufficient severity to produce unemployability prior to April 25, 2012. Additionally, the Board considered the impact of the Veteran’s cataracts with regard to his history of employment, however, the record does not show that prior to April 25, 2012, the condition alone impeded his ability to secure or follow a substantially gainful employment. See February 2012 VA treatment record. Moreover, the Veteran’s overall 50 percent rating during this period represents the average impairment in earning capacity in civil occupations resulting from his disabilities and is considered adequate to compensate for considerable loss of working time. 38 C.F.R. § 4.1. The RO determined that referral for extraschedular consideration was not warranted, pointing out that the Veteran reported that you last worked in 1992 and were not working because he had his colon removed and wear a colostomy bag. The Board finds there is insufficient evidence to find that the Veteran’s service-connected disabilities alone preclude substantially gainful employment prior to April 25, 2012, and agrees with the RO that remand for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU prior to April 25, 2012 is not warranted. Indeed, the basis cited by the Veteran is for the impact of a nonservice-connected disability. Indeed, service connection has been formally denied for this condition. (Continued on the next page)   Overall, the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU prior to April 25, 2012 is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.