Citation Nr: 21076459 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 12-00 967 DATE: December 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 6, 2021 is denied. FINDING OF FACT The record does not reasonably show that the Veteran's service-connected conditions only precludes him from securing or following a substantially gainful employment prior to January 6, 2021. CONCLUSION OF LAW The criteria for assignment of TDIU prior to January 6, 2021, have not been met. 38 U.S.C. §§ 5107, 5110; 38C.F.R. §§3.102, 3.340, 3.341, 3.400, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1975 to November 1979. Further, the record reflects he had additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in March 2018, August 2020 and May 2021 and remanded for additional development. TDIU prior to January 6, 2021 The Veteran reported that he is entitled to TDIU benefits due to him not being able to secure or follow any substantial gainful occupation. See VA Form 21-8940 (May 2011 and August 2020). In support, the Veteran's stated that he could not work due to his service-connected disabilities. See BVA Hearing transcript (December 2017). Additionally, in January and March 2021VA examiners stated that the Veteran's service-connected conditions impact his ability to work. See VA medical examination (January and March 2021). Indeed, the record shows the great limitations and modifications required for the Veteran to have the opportunity to have a possible sedentary job. Id. The Veteran completed one year of college and CDL training. He worked as a mechanic and driver. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g., orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In May 2021, the Board remanded this case to the Director of Compensation for consideration of an extraschedular rating prior to January 6, 2021. See Bowling v. Principi, 15 Vet. App.1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under § 4.16(b)). \ In September 2021, the Director denied this claim noting that the preponderance of evidence does not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions alone for the period in question. See VA memo (September 2021). The Board notes that the decision of the Director, Compensation Service, is not binding on the Board. The Board reviews the entirety of the Director's decision de novo and is thus authorized to assign an extraschedular rating when appropriate. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Veteran's May 2011 VA Form 21-8940 shows that he was unable to work due to his hearing loss, right ankle and left hand. He last worked on December 2005. Additionally, his August 2020 VA Form 21-8940 added his conditions of PTSD and bilateral knees to his previous list of conditions that made him unable to work. The evidence of record shows that the Veteran has training in aircraft mechanics, CDL training, clerical training and as a driver. Additionally, he worked part time as driver and mechanic from November 2017 to November 2018. He also completed one year of college. The Board finds that TDIU prior to January 6, 2021 is not warranted since his service-connected disabilities. The Board remanded this issue to the Director of Compensation, and it was denied. See VA memo (September 2021). The Board is cognizant of the decision of the Court in Withers v. Wilkie, which held that the term "sedentary" has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes, there must be an explanation as to how it is applied to a veteran's individual case. See Withers v. Wilkie, 30 Vet. App. 139 (2018). However, after a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran's service-connected conditions do not precludes him from performance of substantially gainful employment. Despite his physical limitations by his service-connected disabilities, the Board find that the Veteran's vocational skills, education and experience would allow him to obtain and maintain substantial gainful employment. Additionally, the Board envisions a position for work and use of his knowledge as a mechanic, driver and clerk, to include a desk office job, administrative, instructor or others. The Board identified such job positions that could accommodate his physical limitations and for which he had the requisite experience, educational and vocational skills. Further, the record does not show that his service-connected disabilities impact his ability to find and secure substantially gainful employment prior to January 6, 2021. The Board acknowledges that the Veteran suffers from other conditions that might contribute to his inability to work. However, the criteria for TDIU specifically indicate that no consideration can be given to the effect of nonservice-connected disabilities. See 38C.F.R. §4.16. On this basis, the Board finds that the criteria for TDIU are not met. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, "VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran's] ability to engage in substantially gainful employment." Id. Here, the preponderance of the evidence shows that the Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. As a finder of fact, the Board concludes that based on the lay and medical evidence, the Veteran's service-connected disabilities did not preclude substantial gainful employment consistent with the Veteran's education and labor-intensive occupational experience prior to January 6, 2021. Based on the evidence, the Board as a finder of fact, concludes that the evidence does not supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the Veteran's given his level of education, training and work experience, his service-connected disabilities did not render the Veteran unable to secure substantially gainful employment in this particular case prior to January 6, 2021. In light of the foregoing, the Board concludes that entitlement to TDIU is not warranted for the period prior to January 6, 2021. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.