Citation Nr: A21020366
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 190826-28176
DATE: December 21, 2021

ORDER

Entitlement to a total disability evaluation due to individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDING OF FACT

The Veteran did not have service-connected disabilities that preclude him from securing and following substantially gainful employment during the period for consideration on appeal.

CONCLUSION OF LAW

The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1974 to July 1979.

The claim was addressed in a March 2019 rating decision. The Veteran appealed directly to the Board and chose the Hearing docket. See August 2019 VA Form 10182. The Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the Ma Board hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). A transcript of the hearing is associated with the record.

Entitlement to a TDIU.

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). 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. 38 C.F.R. § 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

The Veteran argues that he is unemployable due to service related disabilities. He indicated that he had a GED, military training, and auto mechanics training. The Veteran indicated that he worked in physical work and that this was impaired by his foot disability.

However, during the period for consideration (which ends as of the March 2019 notification of the rating decision on appeal) the Veteran is not in receipt of service-connected benefits for any disability. Therefore, entitlement to a TDIU is denied.

The Board acknowledges that subsequent to the period on appeal, the Veteran was granted entitlement to service connection for multiple disabilities and awarded benefits effective June 2021. And a separate December 2021 Board decision granted service connection for a right foot disability. That decision has not yet been implemented. Those actions do not change the fact that the Veteran was not in receipt of service-connected benefits during the period under consideration in this decision. The adjudications that resulted in grants of service connection occurred outside the period of the present appeal. The Veteran is advised that, if he desires, he can submit a supplemental TDIU claim from the decision within the appropriate timeframe.

 

 

M.E. LARKIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert J. Burriesci, 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.