Citation Nr: 21007289 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-02 461 DATE: February 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 9, 2018, including on an extraschedular basis, is denied. FINDING OF FACT Prior to May 9, 2018, the Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against finding that the Veteran was unable to obtain or retain substantially gainful employment due to service-connected disability alone. CONCLUSION OF LAW Prior to May 9, 2018, the criteria for entitlement to a TDIU due to service-connected disabilities, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1970 to February 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for entitlement to a TDIU was recognized by the Board in an August 2017 rating decision as part and parcel of the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim was remanded in the decision. During the pendency of the appeal, an April 2020 rating decision granted the Veteran's TDIU claim effective May 9, 2018. As the claim for TDIU was not granted for the entire claims period, it is considered a partial grant and the issue of entitlement to a TDIU prior to May 9, 2018, remained on appeal. In a July 2020 decision, the Board remanded the issue of entitlement to a TDIU prior to May 9, 2018, for additional development. This issue has returned to the Board for further appellate review. Entitlement to TDIU prior to May 9, 2018. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Prior to May 9, 2018, the Veteran was service connected for the following: • PTSD, rated as 50 percent disabling from September 9, 2010. • Coronary artery disease, rated as 10 percent disabling from June 23, 2014. • Bilateral hearing loss rated a 0 percent disabling from September 9, 2010. From September 9, 2010, to June 23, 2014, the Veteran's combined disability evaluation for compensation was 50 percent. From June 23, 2014, to May 9, 2018, his combined evaluation was 60 percent Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time prior to May 9, 2018. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU on a schedular basis must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected disabilities nonetheless result in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16(b). Thus, the question becomes whether these disabilities, in and of themselves, precluded the Veteran from securing or following a substantially gainful occupation prior to May 9, 2018. The Board notes that the question of entitlement to a TDIU on an extra-schedular basis has already been adjudicated by the Director, VA Compensation Service, and therefore the Board has jurisdiction over the matter. See Bowling v. Principi, 15 Vet. App. 1 (2001). In a January 2020 advisory opinion, the Executive Director, Compensation Service, concluded the Veteran was not entitled to a TDIU prior to May 9, 2018, including on an extraschedular basis. The opinion found that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to May 9, 2018. The record indicates that the Veteran worked as a handyman from 1988 until 2011. The Veteran stated that he had to stop working due to his symptoms of PTSD. Treatment records show that the Veteran struggled to work due to PTSD-related anxiety and an inability to be alone. For the pendency of the appeal, the Veteran’s PTSD is rated as 50 percent disabling under DC 9411. 38 U.S.C. § 4.130. A 50 percent rating is prescribed when there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Board notes that the July 2020 Board decision raised the Veteran’s disability rating for PTSD from 30 to 50 percent for the pendency of the appeal. Based upon a review of the evidence of record, the Board finds that the record shows that the severity, symptomatology, and difficulties attributable to the Veteran's service-connected PTSD prior to May 9, 2018, are contemplated by the assigned rating criteria. The Board acknowledges that the Veteran’s PTSD caused the Veteran significant problems prior to May 9, 2018 (this is not in dispute). As reflected in his award of a 50 percent disability rating for PTSD, the record clearly indicates that the Veteran has a serious health problem, which is the basis for the 50% rating. The Board also reiterates that the fact that the Veteran was unemployed prior to May 9, 2018, is not determinative; the ultimate question is whether he was incapable, due to service-connected disabilities, of performing the physical and mental acts required by employment. The Veteran’s high 50 percent rating for PTSD is in itself recognition that his mental health condition made it difficult to obtain and keep employment prior to May 9, 2018. In addition to the Veteran’s PTSD, the Board has also considered the aggregate effect of all the Veteran’s service-connected disabilities on his employability prior to May 9, 2018. VA audiological examinations revealed hearing impairment consistent with a non-compensable disability rating. 38 C.F.R. § 4.85. The examiner noted that the Veteran has difficulty hearing in noise and at a distance. The record also shows that the severity, symptomatology, and difficulties attributable to the Veteran's service-connected hearing loss prior to May 9, 2018, are contemplated by the assigned rating criteria. The Veteran was provided a VA examination for heart conditions in October 2014 and September 2015. Both examiners found that the Veteran’s heart condition does not impact his ability to work. The Board acknowledges that VA examinations conducted in May 2018, September 2018, and March 2020 indicate that the Veteran's service-connected conditions, including secondary conditions, and the aggregate effect thereof increased in severity, resulting in the Veteran's inability to obtain and maintain substantially gainful employment. Accordingly, the Veteran was awarded service connection for additional disabilities, increased ratings, and a TDIU effective May 9, 2018. However, the issue presently before the Board only pertains to the period prior to May 9, 2018. As discussed above, prior to May 9, 2018, the available records do not indicate that the Veteran's PTSD, heart condition, and hearing loss caused functional impairment that would preclude the Veteran from securing or following any form of substantially gainful employment consistent with his education and occupational experience. Therefore, the Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a TDIU prior to May 9, 2018, including on an extraschedular basis. The medical evidence of record does not indicate that the Veteran's service-connected disabilities alone prevented the Veteran from maintaining and securing substantially gainful employment prior to May 9, 2018. The record also indicates that the Veteran's symptomatology attributable to his service-connected disabilities was contemplated within the assigned ratings for each of these disabilities prior to May 9, 2018. In summary, the Veteran's combined disability evaluation of 50 percent prior to June 23, 2014, and 60 percent from June 23, 2014, to May 9, 2018, were insufficient to consider TDIU on a schedular basis. 38 C.F.R. § 4.16 (a). The evidence of record does not suggest that the Veteran is entitled to a TDIU on an extraschedular basis prior to May 9, 2018, because it does not show that he was precluded from securing or maintaining substantially gainful employment as a result of service-connected disabilities alone. The case was referred for consideration to the Director, Compensation Service, who found that an extraschedular TDIU should not be awarded prior to May 9, 2018. Accordingly, the Board finds that the criteria for a TDIU prior to May 9, 2018, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.