Citation Nr: 21076665 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-20 689 DATE: December 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 3, 2011 is denied. FINDING OF FACT Prior to July 3, 2011, the Veteran was not rendered unemployable due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU prior to July 3, 2011 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 in the United States Navy from October 1968 to August 1972. In January 2019, the Veteran was provided a Board hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claim was brought before the Board in June 2019 and July 2021 and was remanded for further development Entitlement to TDIU: Prior to July 3, 2011 The Veteran contends that he was unemployable due to his service-connected disabilities prior to July 3, 2011. 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). 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, prior to July 3, 2011, the Veteran is service-connected for renal dysfunction rated as 60 percent disabling and diabetes rated as 20 percent disabling each from July 15, 2010. The Veteran is also service-connected for erectile dysfunction rated as non-compensable. Thus, the Veteran meets the requirements under 38 C.F.R. § 4.16 (a), as his service-connected disabilities provide a combined rating of 70 percent. The evidence of record shows the Veteran has over four years of college experience and his occupational history has primarily consisted of working as a salesman. In February 2011, the Veteran attended a VA examination. The Veteran reported working full-time as salesman. He stated he was working at the position for the past 12 years and lost no time from working during the past 12-months. The Veteran was noted as not being restricted in performing strenuous activities. The Veteran's diabetes was noted as not having an effect on his occupation. The Board notes that the Veteran reported working full time prior to June 2011, and in his September 2011 VA form 21-4192 Request for Employment Information, his employer noted the date the Veteran last worked was July 2, 2011. The Veteran was further noted as making $19,864 within the past 12 months. After review of the evidence of record, the Board finds that Veteran's service-connected disabilities did not render him unemployable prior to July 3, 2011. The Board acknowledges that the Veteran has contended his disabilities prevented him from performing physical tasks, especially due to his diabetes, which included leg pain caused by diabetic peripheral vascular disease. However, the evidence of record shows the Veteran consistently reported working prior to July 2011. He also was found to not have missed any work due to his disabilities in his February 2011 VA examination. Lastly, the Veteran was noted as making $19,864 for the last 12 months prior to his unemployment, which is above the poverty threshold for the years 2010-2011. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (showing the poverty threshold for two adults was $14,218 in 2010 and $14,657 in 2011). There's also no evidence, to include the Veteran's statements, that his salesman position was a sheltered environment. Thus, the Veteran's employment was not marginal. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Accordingly, based on the evidence of record, the Board concludes that the Veteran was not rendered unemployable due to his service-connected disabilities prior to July 3, 2011. When considering the Veteran's education and employment background, as well as the medical evidence of record, the Board finds a grant of TDIU prior to July 3, 2011 is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J Negron, 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.