Citation Nr: 21075399 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-36 036 DATE: December 20, 2021 ORDER A total disability rating due to unemployability (TDIU) prior to March 25, 2017 is denied. FINDING OF FACT The probative evidence of record indicates that between May 2011 and March 25, 2017, the Veteran was gainfully employed as a car salesman. CONCLUSION OF LAW Prior to March 25, 2017, the criteria have not been met for a TDIU rating. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1987 to January 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. These matters were previously before the Board and were remanded for further development in February 2018, February 2020, and January 2021. Entitlement to a TDIU rating prior to March 25, 2017 is denied. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility The Veteran filed his application for a TDIU rating in May 2011. At that time, the Veteran did not meet the criteria for a TDIU rating on a schedular basis. Accordingly, the Board will determine whether or not a plausible basis for an extraschedular TDIU exists, in which case this matter would be referred to the Director of Compensation Service. Factual Background The Veteran reported on his TDIU application that the date he last worked full-time was January 8, 2008 as a salesman. The Veteran further reported that he worked at this position from January 2006 to January 2009. Prior to this, the Veteran reported working as a general manager for an automotive company from August 1995 to January 2006. The Veteran reported that his foot, ankle, and back pain have been increasing for years and make him unable to find employment. The Veteran further reported that he cannot walk for very long or lift anything. See May 2011 correspondence. The results of a May 2011 medical examination indicate that there would be partial impairment of physical activities of employment due to right ankle and foot conditions. A February 2009 medical treatment note indicates that the Veteran was currently employed and on his feet for over eight hours a day. A May 2009 medical treatment note indicates that the Veteran was not currently working and that he used to work with ATV batteries but has not done so for over a year. A June 2009 medical treatment note indicates that the Veteran owns a business and does not work with his hands very often. An October 2009 medical treatment note indicates that the Veteran intermittently lifts heavy objects at workbut not in the past three weeks. See VA treatment notes. A July 2012 VA treatment note indicates that the Veteran was currently employed. A February 2013 VA examination indicates that the Veteran owned an ATV and scooter company which folded in 2010. The Veteran indicated that he was working at a Honda dealership. A March 2015 medical treatment note indicates that the Veteran was working as a manager at a Ford dealership. The Veteran submitted another TDIU application in March 2021 in which he reported that he was employed as a manager at Hyundai from September 2015 to April 2017 until he could no longer work due to his feet, ankles, and depression. The highest monthly amount of money that the Veteran made during this period was $6,600. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected conditions have rendered him unemployable prior to March 25, 2017. The Board notes that the March 2011 examiner opined that there would be only partial impairment of physical activities of employment due to right ankle and foot conditions. Additionally, the evidence of record indicates that from the time the Veteran submitted his TDIU application in May 2011 to March 25, 2017, he was employed in management positions at various automobile dealerships making well above poverty level. The Veteran has not submitted evidence indicating that he was unemployed for any significant length of time due to his service-connected conditions. As the evidence does not support a finding that the Veteran's service-connected conditions rendered him unemployable prior to March 25, 2017, the Board will not refer this matter to the Director of Compensation Service for extraschedular consideration, and the claim is denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.