Citation Nr: 21006641 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-32 736 DATE: February 4, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) prior to November 20, 2014 is denied. FINDING OF FACT Prior to November 20, 2014, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to November 20, 2014, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from November 1968 to October 1970 and from June 1971 to December 1971. In July 2019, the Board remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU prior to November 20, 2014 Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2019). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to November 20, 2014, the Veteran was receipt of a 30 percent disability rating for coronary artery disease and 30 percent disability rating for adjustment disorder for a combined disability rating of 50 percent. Accordingly, the Veteran is not eligible for the award of a TDIU on a schedular basis at any point prior to November 20, 2014, per 38 C.F.R. § 4.16(a). However, the Veteran may nevertheless be awarded a TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) if the evidence reflects that his service-connected disabilities rendered him unemployable during the appeal period. If the Board finds sufficient evidence to suggest such an effect of the Veteran’s service-connected disabilities, the Board must then refer the claim to the VA Director of Compensation Service for an initial administrative determination as to whether the service-connected disabilities did indeed produce unemployability. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that the Board is authorized to award an extraschedular TDIU after obtaining the Director’s decision). Social Security Administration records indicate that the Veteran was awarded disability from November 2009, in part, due to his coronary artery disease. The January 2011 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability indicates that the Veteran’s highest level of education was four years of high school. Further, the Veteran last worked in November 2007 in construction and welding and indicated that his unemployability was due to his heart condition. The June 2011 Mental Disorders examination indicates that the Veteran has difficulty with his ability to focus and concentrate and states that he has been forgetting things, such as where he puts his eyeglasses and things of that nature. Nevertheless, the examiner does not discuss the Veteran’s employability. The remaining evidence of record during the appeal period is silent regarding the Veteran’s employability or lack thereof. In sum, the record reflects that the Veteran is not schedularly eligible for TDIU consideration, and a referral for extraschedular consideration is not warranted, as the pertinent medical evidence of record indicates the Veteran is not precluded from gainful employment due to his service-connected disabilities. Thus, the preponderance of evidence is against the Veteran’s claim seeking a TDIU; there is no benefit of the doubt to be resolved in the Veteran’s favor, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.