Citation Nr: 21073812 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-37 862 DATE: December 10, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis, prior to October 17, 2014, is denied. FINDINGS OF FACT 1. The Veteran reported that as of February 28, 2014, his service-connected disabilities precluded him from working. 2. From April 24, 2014, to October 17, 2014, the Veteran was in receipt of a temporary total (100 percent) disability rating for convalescence. 3. The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities from February 28, 2014, to April 24, 2014. CONCLUSION OF LAW The criteria for TDIU on an extraschedular rating prior to October 17, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in May 2021. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). TDIU Criteria VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As previously discussed in the May 2021 Board remand, the Veteran did not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a) prior to October 17, 2014. However, TDIU may be granted on an extraschedular basis under 38 C.F.R. § 4.16 (b) if it is established that the Veteran is unemployable on account of his service-connected disabilities. Because the Board was precluded from granting a TDIU on an extraschedular basis in the first instance, the matter was referred to the Director, Compensation Service for initial adjudication. See 38 C.F.R. § 4.16 (b); Barringer v. Peake, 22 Vet. App. 242 (2008). 1. Entitlement to a TDIU on an extraschedular basis, prior to October 17, 2014 The Veteran contends that he is entitled to a TDIU rating from February 28, 2014, when he was last able to work. From February 28, 2014, to April 24, 2014, the Veteran had a combined disability rating of 20 percent due to his service-connected bilateral hearing loss and tinnitus. He was granted service connection with a temporary 100 percent rating following surgery for a right upper lobectomy effective April 24, 2014. The Veteran was then granted TDIU from October 17, 2014. A TDIU is moot during the periods of temporary 100-percent schedular ratings for the Veteran's periods of convalescence. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). Therefore, the period currently at issue is from February 28, 2014, to April 24, 2014. The Veteran did not meet the schedular requirements for TDIU with his combined 20 percent rating prior to April 24, 2014. As such, the claim for a schedular rating was denied and a claim for an extraschedular TDIU rating was remanded and referred to the Director, Compensation Service. Regarding the Veteran's employment and education history, he reported that he obtained a four-year college degree. He also stated he worked from July 2004 until February 28, 2014, as a purchasing agent, but his bilateral hearing loss and lung disability prevented him from continuing to work. The Board notes that as of February 28, 2014, the Veteran was not yet service-connected for his lung disability. The record does not contain any VA examination reports dated around February 2014 and April 2014 that assess the functional impact of the Veteran's hearing loss and tinnitus. A September 2021 advisory opinion from the Executive Director of Compensation Service (Director) noted the Veteran's college education, his previous work as a purchasing agent, and his service-connected disabilities of bilateral hearing loss and tinnitus prior to April 24, 2014. The Director also confirmed that the Veteran's medical and lay evidence was reviewed. The Director determined that after considering all relevant evidence; including, but not limited to the Veteran's education, training, and work history, the overall evidence fails to support the contention that the combination of the effects of the Veteran's service-connected disabilities support an exceptional situation that prevented gainful employment. The Director further stated that there is no indication prior to October 17, 2014, that the Veteran's service-connected conditions resulted in functional impairment that would preclude employment. (Continued on the next page) Based on the above, the Board agrees that the weight of the evidence is against an extraschedular TDIU rating prior to October 17, 2014. Although the Veteran reported that he had to stop working due to his service-connected disabilities, at that time his only disabilities were hearing related, and the severity of those resulted in a combined 20 percent rating. Since April 24, 2014, the Veteran has been in receipt of either a 100 percent rating or a TDIU rating. The Veteran has not specifically indicated how his bilateral hearing loss and tinnitus disabilities prevented him from working prior to April 24, 2014, nor is there any medical evidence of record that supports a finding that a TDIU should be granted prior to receiving a 100 percent rating on April 24, 2014. Due to the lack of medical evidence in support of the claim, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities prevented him from obtaining and maintaining gainful employment prior to April 24, 2014, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.