Citation Nr: 21073014 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 11-28 320 DATE: December 7, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to August 2, 2014 is denied. FINDING OF FACT Prior to August 2, 2014, the Veteran's service-connected posttraumatic stress disorder (PTSD) and hypertension did not render him unable to obtain or maintain substantially gainful employment consistent with his education and occupational history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1988 to February 1995. This matter was initially before the Board in April 2019, where it was remanded for additional development. The Board determined that his TDIU claim was intrinsically intertwined with his service connection claim. The matter was remanded in December 2020 for the same reason. The matter returned to the Board in September 2021, where it was again remanded. This time, his TDIU claim was deferred pending AOJ action, as he was granted service connection for allergic rhinitis in the Board decision. Such development has been completed and the matter returned to the Board for appellate consideration. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to a single service-connected disability ratable at 60 percent or more, or due to two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board notes that prior to November 27, 2012, the Veteran did not meet the schedular criteria for TDIU. At that time, he had a 30 percent evaluation for PTSD; 10 percent evaluation for peroneal neuropathy of the lower extremity; 10 percent evaluation for GSW right gastrocnemius muscle; and noncompensable ratings for hypertension, scars, and allergic rhinitis. Nonetheless, entitlement to a TDIU may be warranted on an extraschedular basis. 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, 31 Vet. App. at 66. The Veteran asserts that he is unable to secure or maintain substantially gainful employment due to his service-connected PTSD and hypertension disabilities. See October 2016 VA Form 21-8940. Specifically, he contends that he is entitled to TDIU prior to August 2, 2014. According to the Veteran's VA Form 21-8940, he stated that he became too disabled to work in August 2009. The Veteran's employment history indicated that he worked full-time in logistics for DSRV, Inc. from June 2010 to August 2014. In an October 2009 VA examination, the Veteran stated that he has been employed full-time in logistics. He stated that the duration of his employment at the time was between 5 to 10 years. The evidence of record shows that the Veteran has maintained full-time employment during the period under consideration. The Board acknowledges the functional impairment resulting from his service-connected PTSD and hypertension; however, the evidence does not demonstrate that said service-connected disabilities result in the Veteran's inability to secure and follow gainful employment. While the medical evidence reflects that the Veteran's service-connected PTSD and hypertension limits some tasks and impacted his employment, it did not reflect that he was unemployable. Additionally, the Veteran has advanced no argument that his employment is sheltered or protected in any way, and there is no evidence to that effect in the record. The Veteran has been awarded TDIU from August 2, 2014, the day after he last worked full time, to August 22, 2017. Accordingly, entitlement to a TDIU, to include referral for extraschedular consideration, is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.