Citation Nr: 21075498 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-19 069A DATE: December 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to May 29, 2013 is granted. FINDING OF FACT Prior to May 29, 2013, the Veteran's service-connected disabilities precluded him from engaging in gainful employment. CONCLUSION OF LAW Prior to May 29, 2013, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from July 1982 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions. It was previously remanded for additional development in September 2018, February 2019, and March 2021. 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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). During the period in question, the Veteran was service-connected for posttraumatic stress disorder (rated at 50 percent), a seizure disorder (10 percent) and pes planus (0 percent). His combined rating was 60 percent, and his disabilities did not arise out of a common etiology and do not affect a single body system. Therefore, he does not meet the schedular criteria for a TDIU. Nevertheless, where the combined rating percentage requirements are not met, entitlement to a TDIU may be nonetheless considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In February 2021, the Board requested that the Director of Compensation Service provide an opinion as to whether a TDIU was warranted on an extraschedular basis. The Director provided negative opinions in September 2018 and January 2019. The question now returns to the Board for review. The central inquiry is determining whether a TDIU is warranted is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. In various TDIU application forms, the Veteran reported that he had four years of college-level education. He had previous employment doing intake at a social services agency, as well as working as a hospital technician. He last worked full-time in December 2008 or 2009. Regarding functional impairment, two VA opinions were obtained in October 2021 to address the Veteran's PTSD, seizure disorder and pes planus. In one opinion, the VA examiner stated that it was less likely than not that Veteran was capable of maintaining gainful employment prior to May 2013 due to PTSD and depression. The examiner noted how records showed he struggled with lack of focus, inattention, loss of motivation, and angry outbursts. He also used drugs and alcohol to cope, requiring greater than 10 inpatient hospitalizations for rehab. These records also showed the Veteran had consistent job changes, further supporting the inability to maintain employment. In the other opinion, a different VA examiner concluded that it was less likely than not that Veteran would be able to secure or follow a substantially gainful occupation do to combined effects of seizure disorder and pes planus. Pes planus would cause difficulty with prolonged walking and standing. The seizure disorder would cause difficulty with manual/active labor as well as sedentary work. The examiner noted that seizure disorders are unpredictable leading to disorientation. Based on these opinions, the Board finds that the Veteran was unable to perform gainful employment prior to May 29, 2013, due to his service-connected disabilities. Therefore, an extraschedular TDIU is warranted for that period. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.