Citation Nr: 21074904 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-46 593 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for a TDIU based on his service-connected disabilities and the most probative evidence of record does not reflect that he is unemployable solely due to the service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to May 1991. In September 2019, the Board of Veterans' Appeal (Board) issued a decision finding that the issue of entitlement to a TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The case was last before the Board in June 2021, at which time the Board remanded the claim for the purposes of obtaining the Veteran's VA treatment records for the period from August 2020 to the Present and to refer the claim for entitlement to a TDIU to the Director of Compensation Services for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Such development has been completed and, thus, further remand is not required. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, 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 disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling from February 27, 2015; low back strain, rated as 10 percent disability from June 12, 1992 and 20 percent disabling from June 14, 1993; and left lower extremity radiculopathy, rated as 10 percent disabling from February 27, 2015. The Veteran's combined evaluation for compensation is 10 percent from June 12, 1992; 20 percent from June 14, 1993; and 60 percent from February 27, 2015. As such, the Board finds that the Veteran does not have a disability that is rated 60 percent or more or a combined total disability rating exceeding 70 percent. Thus, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have not been met. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director of Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU on an extraschedular basis, there must be impairment so severe that it is impossible for the average person to secure and follow substantially gainful employment. As described in Ray v. Wilkie, the correct standard for 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." 31 Vet. App. 58, 66 (2019). Pursuant to the Board's June 2021 remand, in September 2021, the Director acknowledged that the Veteran had a high school diploma and last worked on a full-time basis in May 2014 in administration. The examiner further reasoned that a June 2017 examination showed that the Veteran's PTSD caused mild-moderate impairment in social functioning and that his SSA records showed that he was deemed disabled in part by his service-connected back, osteoarthritis, diabetes, Guillain-Barre, hypertension, and high cholesterol from April 2014. Ultimately, however, the Director of Compensation Service determined that the overall evidence fails to support a finding that the combined effects of the Veteran's service-connected disabilities preclude him from gainful employment. Here, the Director The Veteran initially filed a VA Form 21-8940 in March 2017, at which time he reported that he worked 40 hours per week as a consumer complaint specialist until he retired in May 2014. He indicated that due to his service-connected PTSD and nonservice-connected rheumatoid arthritis, he was unable to secure or follow substantially gainful employment. A VA Form 21-4192 received in August 2017 indicates that the Veteran last worked in June 2013, at which time he became too disabled to work. Thereafter, in a VA Form 21-8940 filed in August 2020, the Veteran indicated that his service-connected PTSD, low back strain and lower extremity radiculopathy prevented him from securing or following substantially gainful occupation. Social Security Administration (SSA) records show the Veteran had exertional, manipulative, and postural limitations due to rheumatoid arthritis and chronic inflammatory demyelinating polyneuropathy (CIDP), and lumbar degenerative disc disease. The SSA found the Veteran to be disabled due to his service-connected back disability, as well as his nonservice-connected rheumatoid arthritis, diabetes, hypertension, high cholesterol, and CIDP; however, it was noted that he was capable of sedentary work. In June 2015 and June 2017, VA examiners found that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms. The June 2017 examiner explained that the Veteran's PTSD symptoms cause mild to moderate impairment in social functioning that reduces Veteran's desire to be around others. Moreover, the examiner found that under extremely stressful conditions the Veteran's symptoms may be exacerbated. As such, the examiner concluded that the Veteran's likelihood of functioning in a work setting may decrease work efficiency during period of significant or excessive stress. During a June 2015 back conditions examination, the examiner indicated that the Veteran's back disability did not impact his ability to work. In April 2017, a VA examiner indicated that the Veteran's back disability impacts his ability to work in that it impacted his ability to lift, bend, reach, stand, and walk for prolonged periods of time. During a July 2019 VA examination, the examiner stated that the Veteran's back condition impacted his ability to work, noting the Veteran's comment that he could not work due to his service-connected back disability. The Board acknowledges that in July 2017, VA examiners found that the Veteran suffered from rheumatoid arthritis and Guillain-Barre syndrome, both impacting his ability to perform occupational tasks. However, the Board notes that the Veteran is not service connected for either of these conditions. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. The Veteran does not meet the schedular criteria for a TDIU and the most probative evidence of record does not show that he is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. More specifically, the evidence of record shows that the Veteran had a long-standing career in a sedentary occupation as a consumer complaint specialist, and the VA medical opinions of record do not indicate that the Veteran is prevented from engaging in sedentary work. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted and the appeal is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.