Citation Nr: 21066524 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-13 298 DATE: November 1, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to April 1988 and from May 1995 to February 1997. The Board denied the claim for TDIU in a January 2017 decision which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted the parties Joint Motion for Remand (JMR). The appeal was most recently before the Board in September 2020 when it was remanded for further development consistent with the JMR. The Board is satisfied that there has been substantial compliance with the September 2020 remand directives and the Board may proceed with review. Stegall v. We0st, 11 Vet. App. 268 (1998). The Board notes that there is a separate appeal stream for this Veteran under docket Number 19-18 792, where the issue of TDIU was included in a February 2020 remand as part and parcel of other increased rating claims associated with docket number. Since the issue of TDIU was remanded to the Board by the Court under Docket Number 09-13 298, the Board will continue the TDIU appeal under the docket number assigned to this claim. Entitlement to TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry in a claim for TDIU 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, 4 Vet. App. at 363. The Veteran's service-connected disabilities have a combined rating of 60 percent effective April 9, 2009 (beginning of appeal period). Even after considering the bilateral factor and combining disability ratings from a common etiology as a single disability, the Veteran does not meet the schedular criteria for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). His service-connected disabilities are degenerative arthritis and spinal fusion with a 40 percent rating, lumbar spine; radiculopathy of the left lower extremity, 10 percent; radiculopathy of the right lower extremity, 10 percent; right knee disability, 10 percent; tinnitus, 10 percent; a scar from spinal fusion of the back and erectile dysfunction both with noncompensable ratings. Medical records from TDCJ also show that the Veteran also has several non-service-connected disabilities of hepatitis C; diabetes melitis type 2; anxiety disorder and a kidney disability. The Veteran is incarcerated in the Texas Department Criminal Justice (TDCJ). The Agency of Original Jurisdiction (AOJ) has made reasonable attempts to afford the Veteran a VA examination to assess the functional impairment caused by the Veteran's service-connected disabilities. VA requested that the Veteran be transported to a VA facility for the examinations or for TDCJ to permit a VA examiner to perform an examination at a TDCJ facility. However, the examination requests were denied by TDCJ in August 2021. Therefore, all reasonable attempts have been made to obtain a VA examination for the Veteran but have been unable to do so. Therefore, the Board must decide the claim using the evidence of record. In the Veteran's September 2018 application for TDIU he reported that he has a college education and has only worked as a cook or recreational counselor since leaving active service in 1997. The Veteran also reported that, due to his service-connected disabilities, he has not engaged in substantially gainful employment since 1997. In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on "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 extraschedular TDIU referral is warranted, the Board has considered the Veteran's educational and occupational history. Referring to the VA Form 21-8940 (TDIU Application), submitted in September 2018, the Veteran reported has a college education but has only worked as a cook or recreational counselor since leaving active service. The Veteran also reported that, due to his service-connected disabilities, he has not engaged in substantially gainful employment since 1997. Thus, the Veteran's work experience is primarily physical in nature. The Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU. The evidence fails to substantiate that the Veteran's service-connected disabilities are of such a severity or frequency that they prevent the Veteran from securing or following all forms of substantially gainful employment, consistent with his occupational history and educational attainment. The record shows that although his work experience was physical in nature as is the bulk of his service-connected disabilities, he does possess skills where he may be able to work in a sedentary environment. Unfortunately, the functional limitations caused by the Veteran's nonservice-connected disabilities cannot be considered in adjudicating the Veteran's claim for an award of an extraschedular TDIU. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude the Veteran from obtaining and maintaining all forms of substantially gainful employment. A review of the probative medical evidence of record establishes that the Veteran's service-connected skin disabilities are not of such a severity that they preclude the Veteran from securing and following substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.