Citation Nr: 21063884 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-50 574 DATE: October 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 22, 2017, is denied. FINDINGS OF FACT 1. From October 30, 2013, to September 22, 2017, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. 2. Prior to October 30, 2013, the Veteran did not meet the numeric requirements for schedular TDIU; and the weight of the evidence is against a referral for extraschedular consideration of TDIU. CONCLUSION OF LAW Prior to September 22, 2017, the criteria for entitlement to a TDIU, to include extraschedular TDIU, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16(a), (b), 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to October 1969. The Veteran has been granted a TDIU due to service-connected disabilities, effective September 22, 2017. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board then remanded the claim in February 2020 and in April 2021 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU due to service-connected disabilities, prior to September 22, 2017. The Veteran, and his representative, contends that his service-connected posttraumatic stress disorder (PTSD), ischemic heart disease (IHD), and bilateral hearing loss disabilities prevent him from securing or following substantially gainful employment. See Hearing Transcript 4-14 (December 2019). The Veteran seeks a grant for a TDIU from March 30, 2011, to September 22, 2017. See VA Form 21-4138 (July 2021). The Board concludes that, from October 30, 2013 to September 22, 2017, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. The Board also concludes that, prior to October 30, 2013, the Veteran did not meet the numeric requirements for schedular TDIU under 38 C.F.R. § 4.16(a) and that referral to the VA Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) is not warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran 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, such disability shall be ratable as 60 percent or more and 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. 38 C.F.R. § 4.16(a). Notwithstanding the criteria for schedular TDIU, TDIU is warranted whenever service-connected disabilities cause unemployability pursuant to 38 C.F.R. § 4.16(b), but the Board is precluded from awarding a TDIU under 38 C.F.R. § 4.16(b) without first referring the matter to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray, 31 Vet. App. 58. Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, from October 30, 2013, to September 22, 2017, the Veteran met the numeric standard for consideration of entitlement to schedular TDIU under 38 C.F.R. § 4.16(a). He had been service-connected for IHD (60%); tinnitus (10%); and right index extensor tendon laceration (10%). He also had noncompensable ratings for his bilateral hearing loss disability and left index finger scar. His combined rating, for this period, was 70 percent. Thus, the Veteran met the schedular requirements for a TDIU. Prior to October 30, 2013, the Veteran was service-connected for IHD (10%); tinnitus (10%); and right index extensor tendon laceration (10%). He also had noncompensable ratings for his bilateral hearing loss disability and left index finger scar. His combined rating, for this period, was 30 percent. Therefore, he did not meet the criteria for schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran filed his TDIU claim in September 2015, indicating that he last worked in May 2003, and in 2004 became too disabled to work; he had last worked as a letter carrier for the United States Postal Service; he completed four years of high school education and one year of college education. He listed his IHD as precluding his ability to work, and also indicated (by leaving blank) that he had not been in a doctor's care and/or hospitalized in the past 12 months. See VA Form 21-8940 (September 2015). The Veteran, in April 2021, filed another VA Form 21-8940. He indicated that he last worked and became too disabled to work in May 2003; he worked as a letter carrier for the United States Postal Service and worked presently part-time at a golf club; and he completed four years of high school education and one year of college education. He listed his IHD, tinnitus, bilateral hearing loss disability, right index finger disability, and left index finger scar as precluding his ability to work, and also indicated that he had been in a doctor's care and/or hospitalized in the past 12 months. Here, the evidence of record shows that, prior to September 22, 2017, the Veteran was marginally employed, working part-time as a cart attendant and a starter. However, for reasons explained below, the Board finds that, prior to September 22, 2017, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. VA examination report, dated in August 2016, reflects that the Veteran reported longstanding difficulties with hearing out of the left ear and direct speech to his right ear. He additionally reported wearing hearing aids as the situation demands. The report also shows no functional impact due to the Veteran's tinnitus. VA examination report, dated in October 2015, reveals that the Veteran reported having a stent in the proximal right coronary artery (RCA). On examination, the examiner found no evidence of inducible ischemia; that the left ventricle cavity size was normal with normal thickness; normal augmentation of all left ventricular wall segments; and that the Veteran's IHD did not impact his ability to work. VA examination report, dated in January 2014, shows that the Veteran reported difficulty hearing at home and during social situations. With regard to his tinnitus, the report reveals that the Veteran reported being aware of the tinnitus. Private examination report, dated in October 2013, reflects that due to symptoms associated with the Veteran's IHD, he could not walk long distances. VA examination report, dated in May 2011, reveals no functional impact due to the Veteran's IHD. VA examination report, dated in March 2011, with regard to the Veteran's right index finger disability, shows no significant effect on usual occupation and no effect on usual daily activities. VA treatment record, dated in September 2011, reflects that the Veteran reported golfing, four days a week, and working part-time, 2 days a week. VA treatment record, dated in November 2013, shows that the Veteran reported shortness of breath on exertion, usually while mowing the lawn and/or golfing, and that he had been experiencing symptoms at lower exertional levels, but has been doing well since his RCA stent. The treatment record also reveals that the Veteran denied current symptoms of shortness of breath or chest pressure at rest or with exertion, and symptoms of syncope, palpitations, and dizziness. Treatment record, dated in July 2014, shows that the Veteran described himself as a golfer. In December 2015, following a hospital discharge for a shin laceration, the Veteran described his health as "real good." He further stated that he went to the golf course, and rode around on a golf cart with friends. VA treatment records, dated in November 2016 and December 2016, show that the Veteran reported part-time employment at a golf course, and that he played golf, three times a week, and did a lot of walking. At the December 2019 Board hearing, the Veteran testified that the primary symptoms that prevented him from being able to hold an occupation included shortness of breath, hearing loss, and being around people. In elaborating on his PTSD symptoms, the Veteran stated that he would become angry when people around him would do something stupid. See Hearing Transcript 4-14 (December 2019). Considering this evidence together, the Board finds that the probative evidence, as described above, does not show the Veteran's service-connected disabilities, prior to September 22, 2017, singularly or jointly, were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history. In this regard, although some difficulties were noted, to specifically include the Veteran's hearing difficulties and limitation to walk long distances, none of the clinicians who examined the Veteran found such disabilities precluded employment. Indeed, a thorough review of the record reveals that, prior to September 22, 2017, the Veteran's functional limitation imposed by service-connected disabilities did not preclude him from performance of substantially gainful employment. As noted above, the record, overall, indicates the Veteran as a fair-weather golfer that golfed multiple times a week with friends. The Board observes that the sport of golf requires strength, power, flexibility, balance, core stability, and even endurance. These are physical traits commonly found in the workplace and are generally required for occupational functions. Moreover, the record reveals that, aside from golfing, the Veteran lived an active lifestyle, in which, he would travel, hike mountains, and fish. Nevertheless, despite his physical limitations, such as his limitation to walk long distances, the Board finds that the Veteran's education (which includes one year of college education) would have allowed him to obtain and maintain substantial gainful employment in an environment that allowed him to alternate between sitting and standing and required little to no lifting, carrying, or long-distance walking, such as a desk office job, that requires minimal exertion. The Board observes that college education, even if it's only one year, has benefits, such as increased access to job opportunities, increased marketability, and networking opportunities. Further, although the Veteran has reported hearing difficulties, the evidence, overall, shows that he has hearing aids, and that he uses them pro re nata (i.e., as needed). Additionally, as noted above, the Board observes that the Veteran has asserted that symptoms associated with his service-connected PTSD have hindered his ability to secure or follow substantially gainful employment. See Hearing Transcript at 4 (December 2019); see also Medical Treatment Record-Government Facility (September 2020) (revealing the conclusion that the Veteran's PTSD symptoms "significantly impaired" his ability to "respond appropriately to coworkers, supervisors or the general public"). Service connection for PTSD, however, was granted in a November 2017 rating decision, with an effective date of September 22, 2017. The Board, therefore, cannot grant a TDIU, prior to September 22, 2017, with consideration of the Veteran's PTSD. Accordingly, the Board finds that, prior to September 22, 2017, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. While the Board does not dismiss the Veteran's assertion that, prior to September 22, 2017, he was unemployable due to service-connected disabilities, a holistic review of the evidence, as explained and discussed above, does not support the contention. In view of the totality of the evidence, the Veteran's service-connected disabilities, employment history, educational history, and all other relevant factors have been considered. Although his service-connected disabilities may have limited the physical acts required by employment, his service-connected disabilities, overall, did not preclude his ability to obtain or retain substantially gainful employment. On balance, the weight of the evidence is against finding that, from October 30, 2013 to September 22, 2017, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. Additionally, on balance, the weight of the evidence is against finding that, prior to October 30, 2013, there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Thus, referral to the VA Director of Compensation is not warranted. 38 C.F.R. § 4.16(b). See Ray, 31 Vet. App. at 66. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.