Citation Nr: 21069853 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-09 927 DATE: November 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to December 1971. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in October 2019. The hearing transcript is associated with the claims file. Entitlement to a TDIU on an extraschedular basis The Veteran seeks entitlement to a TDIU. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. The Veteran is service connected for lumbar spine disability, rated at 10 percent prior to December 12, 2020 and 20 percent thereafter; left hip strain rated at 10 percent; and right hip strain rated at 10 percent. The Veteran has noncompensable ratings for left hip limited extension, right hip limited extension, left hip limited abduction, and right hip limited abduction from December 12, 2020. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). The Board may not consider extraschedular TDIU in the first instance, but may refer it to the Director, Compensation Service (Director), if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Here, as the issue of extraschedular consideration has been adjudicated in the first instance by the Director in September 2021, the Board is free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). If a veteran fails to meet the applicable percentage standards under 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to level of education, special training, and previous work experience. For the reasons that follow, the Board finds a TDIU is not warranted. The Veteran has a college education and past work history as a real estate appraiser. He last worked in January 2012. See March 2020 Veterans Application for Increased Compensation Based on Unemployability. SSA disability reports completed by the Veteran in 2012 describe his past work as a real estate appraiser required walking, standing, climbing, stooping, kneeling, crouching, and crawling for several hours each workday. He stated that he would "go around and inside the house to appraise, carry a ladder to go to the roof etc." He noted that pain with lifting was the main reason he decided to retire early. An April 2012 SSA examination alleged disability due to mid body aches and pain that interferes with lifting. The clinician stated at the time of examination, the Veteran could sit, stand, walk, and handle up to 40 to 50 pounds. There were no postural or manipulative limitations. A July 2012 SSA Reconsideration form noted mild body aches and pains that interfere with lifting. He reported no longer doing the kind of lifting that was causing him pain. The March 2013 VA examiner opined the impact of the Veteran's back disability on his ability to work was low back pain was aggravated by movements. At an October 2019 Board hearing, the Veteran stated the real estate market was dead because of loan rates. He said he is a college graduate with a finance degree. The March 2021 VA examiner noted the impact of the Veteran's back and hip disabilities on his ability to work are that he cannot walk more than 20 to 30 minutes without back and hip pain. Given the forgoing, the Board finds the Veteran's service-connected disabilities do not preclude his ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The preponderance of the evidence shows the Veteran's service-connected back and hip disabilities would prevent him from performing work that required walking for more than 20 minutes at a time or lifting over 20 pounds. Based on the Veteran's description of his past work, he would be unable to work as a real estate appraiser. Looking to whether the Veteran could perform substantially gainful employment that did not require walking more than 20 minutes or lifting more than 20 pounds, the Board finds the Veteran's education and work history demonstrate a cognitive ability to understand and carry out simple to moderately complex instructions and adapt to new work environments. An August 2021 Board decision found sufficient evidence to refer the issue of entitlement to an extraschedular TDIU to the Director. As was noted in the August 2021 Board decision, the standard for extraschedular referral is 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). This standard is lower than that for the decision to grant a TDIU on the merits. Id. at 62. The decision to refer a claim does not bind the Board when it later decides whether to award an extraschedular rating. Id. Accordingly, a TDIU is not warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.