Citation Nr: 21004826 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-04 307 DATE: January 28, 2021 ORDER A total disability rating based on individual unemployability (TDIU) for the period from November 25, 2008, to August 9, 2009, to include as an on extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not prevent him from securing or following a substantially gainful occupation prior to August 9, 2009. CONCLUSION OF LAW The criteria to establish entitlement to TDIU, prior to August 9, 2009, have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from September 1966 to August 1969. He served in the Republic of Vietnam and his military decorations include the Purple Heart, the Bronze Star Medal with a “V” Device, the Bronze Star Medal with First Oak Cluster, and the Army Commendation Medal with a “V” Device. In an August 2020 rating decision, the Veteran was granted TDIU effective August 10, 2009. This matter was last before the Board in July 2020 and remanded for the RO to adjudicate the Veteran’s entitlement to TDIU for the period November 25, 2008 to August 9, 2009. Entitlement to TDIU prior to August 9, 2009 Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A total disability rating may be assigned when the schedular rating is less than 100 percent and the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. See 38 C.F.R. §§ 3.341 (a), 4.16(a). A Veteran’s level of education, special training, and previous work experience may be considered as part of a TDIU claim. A Veteran’s age or impairment(s) caused by non-service-connected disabilities may not be considered as part of a TDIU claim. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.18. The critical inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If unemployability is the result of only one service-connected disability, this disability must be rated at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one disability must be rated at 40 percent or more and the combined disability rating must be 70 percent or more. Id. Disabilities of one or both upper or extremities or one or both lower extremities (to include the bilateral factor), disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (such as orthopedic disabilities) are considered as one disability for TDIU purposes. Id. The Veteran’s combined disability rating met the schedular requirements for TDIU as of August 10, 2009. The Veteran’s combined service-connected disability evaluation was 50 percent for the period prior to August 10, 2009. The Veteran’s combined 50 percent rating for his service-connected disabilities, for the period prior to August 10, 2009, fails to meet the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria for consideration of a TDIU rating for the period on appeal, the Board must also consider whether referral for extra-schedular consideration is warranted at any time during the appeal period. Such consideration is warranted when a Veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), and when two additional criteria are met. It must be shown that the claimant is unable to secure and follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2016). Referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration is not in order. In the Veteran’s April 2018 application for increased compensation based on unemployability, the Veteran reported that he was working until at least April 2009. As to his functional abilities, during a September 2009 VA hearing examination, the Veteran reported that he hunted with a firearm, operated a boat, and rode a motorcycle. He also reported that he used a riding mower, a “weedeater” and a tractor. As to his employability status, he then reported that he had worked for the postal system as a clerk and maintenance supervisor, although he was reported as “retired.” During a contemporaneous dental examination, the Veteran reported that although he was not then employed, he had retired in April 2009. The examiner reported that the cause of the Veteran’s retirement was “eligible by age or duration of work.” The information as to the date and cause of the Veteran’s retirement was reiterated in a contemporaneous orthopedic examination. In an October 2018 statement, the Veteran through his representative indicated that the Veteran was “unable to secure and following substantially gainful employment since 2009.” While the Veteran’s representative also stated that the Veteran’s most recent employment did not require physical activity and the Veteran still had to retire due to an inability to sit for long periods of time the assertion is not supported by the record. As noted, the Veteran reported to VA examiners that he retired because he was eligible due to age or length of employment. The Veteran through his representative has cited a vocational expert’s opinion stating that the Veteran would not have likely not been able to work in a reclined position or take sufficient breaks and that the Veteran’s PTSD made it difficult for him to sustain employment. However, as noted the Veteran was employed until mid-2009. In an August 2010 VA examination, the Veteran was noted to be the president of a gun club intermittently over the previous 10 years and a member for the previous 20 years. The August 2010 examination report also notes that the Veteran’s primary hobbies included hunting, shooting, fishing, and shopping - all activities which require some degree of physical and mental stamina and capability. The examination report also notes that the Veteran does his own housekeeping and sees his ex-wife for a social engagement a few times per week. In November 2010, the Veteran was afforded a VA examination. The report indicates that the Veteran was continuing to hunt as often as he could, would go to the gun club a couple times per week, and sometimes hunted with his two sons. The examination report also indicates that the Veteran has “five acres and mows all of it.” As mentioned above, the Veteran’s had a combined disability rating of 50 percent for the period prior to August 9, 2009. This rating compensates, as far as can practicably be determined, the average impairment of earning capacity resulting from the Veteran’s disabilities. 38 C.F.R. § 4.1. Thus, the currently assigned ratings for the period on appeal already contemplate impairment in the Veteran’s ability to work. The Board has considered the Veteran’s statements regarding the difficulty of employment due his service-connected disabilities; however, the Board does not find that the Veteran was unemployable because of his service-connected conditions for the period prior to August 9, 2009. Therefore, the Veteran’s claim for an effective date prior to August 9, 2009 for TDIU is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, Associate Attorney 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.