Citation Nr: 21066921 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 08-32 385 DATE: November 2, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to October 22, 2011 is denied. FINDING OF FACT The evidence of record indicates that the Veteran was gainfully employed from August 22, 2005 to October 22, 2011; thus, his service-connected disabilities did not preclude him from securing or following substantially gainful employment prior to October 22, 2011. CONCLUSION OF LAW Prior to October 22, 2011, the criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before in the Board in August 2018 and September 2020 and was remanded for further development. A TDIU rating prior to October 22, 2011 is denied. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility As of August 22, 2005, and prior to October 22, 2011, the Veteran was in receipt of a 40 percent disability rating for his service-connected radiculopathy of right upper extremity and a combined 70 percent evaluation for his service-connected disabilities and thus he meets the schedular criteria for TDIU eligibility for the stated period on appeal. 38 C.F.R. § 4.16(a). Factual Background The Veteran reported on his TDIU application that he last worked on October 21, 2011, and that the most he earned in one year was $50,000 in 2008-09. The Veteran submitted a copy of his work experience which indicates that he owned and operated a business from 1993-2010, he drove a truck to supplement his income from 2002-05, and he worked as a buoy mechanic from 2007-10. See correspondence. The Veteran filed an updated TDIU application in July 2016 which indicated that he worked 70-80 hours a week as a mariner from 1990 to 2010 earning as high as $6000 per month. The Veteran indicated that he missed six months of work over that span due to illness. In accordance with the September 2020 Board remand instructions, a July 2021 addendum opinion was issued by an optometrist who opined that between August 22, 2005 and October 22, 2011, the Veteran's service-connected left eye condition would have little impact on paper or computer work and similar roles given the vision in the Veteran's unaffected (right) eye is still 20/20 and would compensate for these tasks. The optometrist opined that the Veteran's left eye condition would have only precluded him from obtaining job positions with specific and standardized visual requirements. Analysis The evidence of record shows that the Veteran maintained substantial gainful employment from August 22, 2005 to October 22, 2011. Although the Veteran missed some time from work due illness, he maintained substantial gainful employment. Given the above, the Board finds the probative evidence of record shows that the Veteran was gainfully employed until October 22, 2011, while earning wages above the poverty threshold. As such, a TDIU rating is not warranted prior to October 22, 2011. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.