Citation Nr: 21007945 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-37 504 DATE: February 11, 2021 ORDER For the period prior to November 28, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT For the period prior to November 28, 2018, the Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW For the period prior to November 28, 2018, the criteria for TDIU 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 Air Force from August 1966 to August 1970. In April 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in April 2018 and most recently in June 2020 where it was remanded for additional evidentiary development. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran filed his claim for TDIU in January 2010, contending that his service-connected posttraumatic stress disorder (PTSD) prevented him from securing or following any substantially gainful employment. By rating action of March 2020, TDIU was awarded effective November 28, 2018. In June 2020, the Board remanded for referral of the Veteran’s claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis for the period prior to November 28, 2018. Thereafter, the issue of entitlement to extraschedular TDIU was adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance. See SSOC dated November 2020. As explained below, after a review of the competent evidence of record, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. For the period prior to November 28, 2018, the schedular criteria for TDIU is not met. He is service connected for PTSD at 50 percent disabling from February 5, 2009 (excluding the period of temporary total rating from February 17, 2015 to May 31, 2015); 50 percent disabling from June 1, 2015; tinnitus at 10 percent disabling; noncompensable ratings for bilateral hearing loss; with a combined evaluation for compensation of 60 percent. 38 C.F.R. §§ 4.16(a), 4.25, 4.26. As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). The Veteran’s formal application (VA Form 21-8940) shows he worked as a custodian for the U.S. Postal Service (USPS) from 1986 to 2009, approximately 23 years. He indicated he was unable to work due to his PTSD and listed he last worked full time in October 2009. He indicated he had a high school education and completed Air Police School. A response from USPS shows the Veteran “retired” with no concessions made by reason of age or disability. See Form VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits received October 2010. The Veteran’s VA treatment notes from February 2009 to November 2018 show his reports of mental health symptoms. However, the examining medical professionals at the time of treatment indicated the Veteran’s thought processes were logical and goal oriented, with fair insight and judgment, and he consistently denied homicidal or suicidal ideation. A March 2009 VA examiner indicated the Veteran was treated for PTSD symptoms and depression but that this did not impact his employability. The examiner indicated that the Veteran appropriately interacts with others, able to meet family and work demands and responsibilities. He has held a job as a custodian for USPS for 23 years. The examiner found no impairment of thought process or communication and although he reported being agitated with his work situation was able to calm down during the interview. A February 2013 VA examiner indicated the Veteran’s hearing loss and tinnitus had no functional impact or significant effects on his occupation. Notably, a July 2015 VA examiner found no formal diagnosis could be made for PTSD. At the time of evaluation, the examiner noted the Veteran’s presentation likely involved some genuine distress and concerns related to mental health symptoms in addition to some clear indicators of inaccurate self-report consistent with malingering. The record also shows a September 2019 administrative review report and a November 2019 Advisory Opinion issued by the Director of Compensation Services. Based on a review of the Veteran’s electronic claims file including medical and lay evidence of record, the Director recommended a denial of entitlement to TDIU on an extra-schedular basis. A review of the evidence of record, taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities, namely his PTSD. While the Veteran reported that he was unable to work at USPS due to his PTSD, his previously employer indicated that no accommodations were made due to disability during the approximately 23 years where the Veteran worked until he retired. The Veteran has not identified or submitted any evidence to the contrary. Additionally, a July 2015 VA examiner found that the Veteran’s mental symptoms of PTSD did not impact his ability to work. Likewise, the March 2009 and February 2013 VA medical professionals consistently found the Veteran’s PTSD symptoms and service-connected hearing loss and tinnitus disabilities did not impact his occupation or ability to work. Meaning, the Veteran’s service-connected disabilities or solely PTSD symptoms are not of such severity to render him unable to obtain or maintain substantially gainful employment. Furthermore, in light of the Advisory Opinion of the Director, Compensation and Pension Service, and the analysis herein, it is the Board’s determination that for the period prior to November 28, 2018 the Veteran was able to obtain or maintain substantially gainful employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, for the period prior to November 28, 2018, TDIU is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.