Citation Nr: 21005505 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-08 395 DATE: February 1, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to October 22, 2016 is denied. FINDING OF FACT Prior to October 22, 2016, the evidence shows that the Veteran’s service-connected ulcer disability did not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU prior to October 22, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to February 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2018. A transcript of the hearing is in the Veteran’s file. In April 2019, the Board granted a higher rating for the Veteran’s service-connected ulcer disease and remanded the TDIU issue for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2020, the RO granted TDIU, effective October 22, 2016. The RO noted that the effective date was the day after the Veteran’s last date of employment. However, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for TDIU is part of an increased rating claim when such is raised by the record. Therefore, the claim for TDIU prior to October 22, 2016, must still be adjudicated. 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/her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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/her 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. 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 are considered one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Prior to October 22, 2016, the Veteran met the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16(a). She is service-connected for an ulcer disease, evaluated as 60 percent disabling; for an adjustment disorder, evaluated as 10 percent disabling; and for a scar disability, evaluated as noncompensable. The Veteran contends that her service-connected ulcer disability rendered her unemployable. At her October 2018 Board hearing, the Veteran noted that she had worked with people with disabilities. It was noted that the symptoms she experienced due to her service-connected disability were not as obvious, while working as an in-home assistant. She noted that she “gave that up” as she was told that she should not lift or push. She also noted receiving Social Security Disability. She stated that due to her service-connected disability, she had to alter her eating habits and plan things around bathrooms. She noted experiencing diarrhea, vomiting, and headaches. She also reported feeling tired. The January 2015 VA stomach and duodenal conditions examination report reflects that the Veteran’s abdominal pain and diarrhea could interfere with work productivity. The December 2015 VA stomach and duodenal conditions examination report reflects that the Veteran’s symptoms would interfere with work activities during flareups. A VA treatment record, dated in July 2016, shows that the Veteran stated that she felt that she was not as capable to do her job, as she could no longer push, pull, or lift her clients without causing extreme pain. She noted that she had to use the bathroom regularly and the symptoms that accompanied this action were embarrassing. The Veteran did not feel that she would be able to do another job that would accommodate her needs. The Board notes that the Veteran is in receipt of benefits from the Social Security Administration for the disorders of inflammatory bowel disease and osteoarthrosis and allied disorders; however, the start date of the receipt of the benefits is February 2018. In addition, the Veteran was employed as a home health care worker until October 2018, although this was for only 16 hours per week between April 2015 and October 2018. See VA Form 21-8940 received in August 2019. The Board finds that the preponderance of the evidence is against granting a claim of TDIU prior to October 22, 2016. The medical and lay evidence of record does not persuasively show that the service-connected disabilities impacted the Veteran so severely as to completely preclude her from securing and following substantially gainful employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While the evidence reflects that the Veteran noted difficulty and embarrassment due to the symptoms of her service-connected disability and that accommodations were needed to be made, it fails to show that substantially gainful employment, to include sedentary labor, was precluded due to service-connected disability. The Board is sympathetic to the Veteran’s contention that her service-connected disability had an impact on her ability to secure or follow a substantially gainful occupation. That impact, however, is adequately reflected in the assigned disability evaluation for the period on appeal. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to award TDIU. The question in a claim for a TDIU rating is whether the Veteran is rendered incapable of engaging in employment consistent with his/her education and experience, due to his/her service-connected disability. In this case, the medical and lay evidence of record reflects that the Veteran’s service-connected disability alone did not preclude her from engaging in gainful employment prior to October 22, 2016. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.