Citation Nr: 21074368 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-23 932 DATE: December 15, 2021 ORDER A total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDING OF FACT The evidence of record does not show the Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1999 to July 2009. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was previously before the Board in January 2021 and was remanded for further development. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one 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). However, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16 (b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16 (b). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). Here the Veteran's compensable service-connected disabilities are bipolar disorder with attention deficit hyperactivity disorder and mild PTSD rated as 70 percent disabling; tension headaches rated as 30 percent disabling; residual right medial collateral ligament strain rated as 10 percent disabling; chronic diarrhea rated as 10 percent disabling; and left ear hearing loss, erectile dysfunction, cysts on the brain, and residuals of right thumb strain, each of which has been rated as noncompensable. The Veteran's compensable disabilities give him a combined rating of 80 percent, and thus, he meets the schedular requirements for a TDIU for this period. 38 C.F.R. § 4.16 (a). The Veteran underwent a VA examination in July 2019. At that time, he stated that he was unable to work due to his service-connected PTSD with unspecified bipolar and related disorder, ADHD, and simple phobia. The VA attempted to obtain additional information regarding the Veteran's individual unemployability in letters mailed on January 29, 2021 and February 9, 2021. To date, the Veteran has not responded to the requests for additional information. In March 2021 VA contacted the Veteran via phone, and he reported that he is working and did not wish to continue with the claim for individual unemployability. VA mailed the Veteran letters in June and July 2021, asking that he submit his withdrawal in writing. See 38 C.F.R. 20.204 (except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing). To date, VA has not received a reply from the Veteran concerning his withdrawal. Therefore, his appeal remains active and within the jurisdiction of the Board. The Board acknowledges that the Veteran has stated in the July 2019 VA examination that he last worked in 2016 because he "couldn't handle it...his relationship with people, decided not to go." However, the evidence of record does not show his service-connected disabilities caused him to be unemployable for the period under consideration. In fact, the evidence of record shows the Veteran is currently employed by his own admission. Therefore, the probative evidence of record shows that the Veteran was capable of performing the acts required in obtaining and maintaining a substantially gainful occupation. As the Veteran has been able to maintain employment, the evidence does not demonstrate he was unemployable for this period. Based on this evidence, the Board concludes that the Veteran has not been rendered unemployable due to his service-connected disabilities. Therefore, a TDIU is not warranted. The claim is denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.