Citation Nr: 21007684 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-37 925 DATE: February 10, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to October 3, 2015 is granted. FINDING OF FACT The Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities prior to October 3, 2015. CONCLUSION OF LAW The criteria for a TDIU are met prior October 3, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Cleveland, Ohio. This matter was previously before the Board at which time it was remanded for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 3, 2015 A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that prior to October 3, 2015 service connection had been established for posttraumatic stress disorder (rated as 30 percent disabling); diabetes mellitus, type II (rated as 20 percent disabling); right foot, great toe, degenerative joint disease (rated as 20 percent disabling); coronary artery disease associated with diabetes mellitus (rated as 10 percent disabling); tinnitus (rated as 10 percent disabling); and bilateral hearing loss (rated as noncompensable). The Veteran did not have one disability rated at least 60 percent disabling; or two or more disabilities, with 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 C.F.R. § 4.16(a). Thus, the Veteran did not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are to be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. In response to an August 2020 Board remand, the RO referred the case to the Director of Compensation Service for extraschedular consideration in September 2020. As this step has been completed, the Board may address whether an extraschedular TDIU is warranted. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities for the period prior to October 3, 2015. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In this regard, the record reflects that the Veteran earned a high school diploma. Since service, the Veteran reported primary employment working in home improvement centers. He retired in 2009 because of his health. Turning to the medical evidence of record, the evidence of record includes an August 2014 Initial Post-Traumatic Stress Disorder VA report of examination in which the examiner opined that symptoms related to PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Symptoms included irritable behavior and angry behavior; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; and mild memory loss, such as forgetting names, directions or recent events. In an August 2014 Hearing Loss and Tinnitus VA report of examination, the examiner opined that the Veteran’s hearing loss impacted ordinary conditions of daily life, including ability to work. The examiner reasoned that the Veteran’s reported difficulty following conversation even with hearing aids. After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise with respect to the issue of whether prior to October 3, 2015 the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working in home improvement centers. The Board acknowledges that the Director of Compensation Service issued a December 2020 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, although the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.