Citation Nr: 21069827 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 04-20 683 DATE: November 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 14, 2012, to include on an extraschedular basis, is denied. FINDING OF FACT The most probative evidence indicates that the Veteran's service-connected disabilities did not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to August 14, 2012, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1979 to July 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in August 2003. The issue of whether the Veteran is entitled to a TDIU prior to August 14, 2012, was remanded by the Board in February 2017, September 2017, November 2018, January 2021, and May 2021. In the most recent Board decision, the Board issued a remand to readjudicate the Veteran's claim with consideration of all pertinent evidence received since the January 2021 supplemental statement of the case (SSOC) was issued. Another SSOC was obtained in August 2021 and therefore the Board finds there is substantial compliance with the Board's prior remand directives. It is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran has been in receipt of a schedular 100 percent combined disability rating since August 14, 2012. The Veteran has also been in receipt of special monthly compensation under 38 U.S.C. § 1114 subsection (s) and subsection (i) on account of posttraumatic stress disorder rated as 100 percent and additional service-connected disability of chronic fatigue syndrome, independently ratable at 60 percent or more from August 14, 2012. Entitlement to a TDIU prior to August 14, 2012, to include on an extraschedular basis. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. In reaching that determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. Here, prior to August 14, 2012, the Veteran was service connected for the following: Posttraumatic stress disorder (PTSD), rated 10 percent disabling; Atherosclerotic heart disease with inferior wall myocardial infarction, old atypical angina pectoris, normal left ventricular function, rated 10 percent disabling; Blood in urine (Hematuria), rated noncompensable; Residuals of left renal lithiasis, rated noncompensable; and Appendectomy scar, rated noncompensable. The Veteran's combined disability rating was 20 percent prior to August 14, 2012, and therefore, the Veteran did not meet the percentage requirements for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16 (a). The question before the Board is whether the Veteran was unemployable by reason of his service-connected disabilities, taking into account his educational and occupational background. The Board finds that the greater weight of the probative evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Evidence shows the Veteran has work experience as a nursing assistant and that he stopped working in 2002 due to a heart attack. However, there is no VA Form 21-8940 to show complete educational and work experience. The Veteran contends he stopped working in January 2003 due to the following: fatigue; being unable to work more than two hours daily; experiencing a high volume of nightmares; being unable to sleep well and sleeping less hours; and due to an increase in health issues. See February 2021 Correspondence. The Veteran's wife also provided lay statements to corroborate the Veteran's claim and his occupational difficulties that he has experienced since he had a heart attack in 2002. In February 2003, Dr. J.M., noted that the Veteran displays excessive tiredness and shortness of breath as a result of the infarct. At that time, the Veteran was recommended to not work until there was a clearer diagnosis of his condition. On VA examination in June 2003, the examiner determined that the Veteran's heart condition was shown to have minimal limitations on the Veteran's usual occupation and daily activities. During another VA examination in May 2009, the Veteran admitted to performing farm work without significant limitation. However, the Veteran noted that he worked slowly. The Veteran was not considered to have total occupational impairment until a January 2013 VA examination. During this examination, the Veteran noted that he worked as a nursing assistant from 1997 to 2003 before retiring due to his heart and nervous condition. Here, it was the Veteran's PTSD symptoms that caused the Veteran clinically significant distress or impairment in social, occupational, or other important areas of functioning. In sum, the objective medical evidence prior to August 14, 2012, to include VA examination reports, did not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment. Following repeated examinations, the evidence in this case provides highly probative evidence against this claim. Additionally, in a January 2021 decision, the Board remanded this matter for referral to the Director of Compensation and Pension for an opinion as to whether an extraschedular TDIU is warranted. In a January 2021 opinion, the Director opined an extraschedular TDIU was not warranted. The Director reviewed the Veteran's medical record and the Veteran's statements regarding his ability to work. Based on the evidence, the Director concluded extraschedular entitlement to a TDIU was not shown due to the Veteran's service-connected disabilities. The Director explained the evidence did not show that the Veteran's service-connected disabilities rendered him unemployable. In reaching their decision, the Director also considered the Veteran's lay statements. However, the Director found greater weight in the objective medical evidence of record. Medical evidence shows PTSD with mild to moderate symptoms and without psychotic features. Although the January 2013 VA examiner noted total occupational impairment, the examiner failed to support this with rationale. Moreover, cardiovascular examination showed the Veteran could walk for 1 hour, perform house chores, and engage in yard chores, including planting. The Director found there is no evidence of an inability to perform sedentary employment due to service-connected conditions prior to August 14, 2012. The Board, and Director alike, recognize the Veteran has service conditions which could have functional impact and impair prolonged activities. A higher rating, in itself, recognizes that the impairment makes it difficult to obtain and maintain employment. This decision evaluates whether the Veteran, because of his service-connected disabilities, was incapable of performing the physical and mental acts required by employment, not whether the Veteran could find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (Continued on the next page) In this case, there is no indication from the record that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly, prior to August 14, 2012. As the preponderance of the evidence is against the claim for entitlement to a TDIU, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.