Citation Nr: 21008174 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-03 686 DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 17, 2016 to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular requirements for TDIU prior to November 17, 2016. 2. Prior to November 17, 2016, the Veteran’s service-connected disabilities did not prevent him from following or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to November 17, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the Army from May 1968 until May 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2016, the Veteran presented testimony at a central office hearing before the undersigned Veterans Law Judge (VLJ). These issues were previously before the Board in July 2016, August 2018, and May 2020 when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the May 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2020, the issue was remanded to the Director of Compensation Service for extraschedular consideration. There is an October 2020 memorandum from the Director of Compensation Service. Accordingly, the Board will proceed with appellate review. TDIU VA will grant 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. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is 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 benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high 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. Van Hoose, 4 Vet. App. at 363. A May 2018 rating decision granted TDIU effective November 17, 2016. This was a partial grant because it did not cover the entire period on appeal. First, the Board finds, prior to November 17, 2016, the Veteran does not meet schedular criteria for TDIU. Prior to November 17, 2016, service connection was in effect for PTSD, hemorrhoids, and infectious hepatitis. The Veteran’s PTSD is evaluated at 50 percent as a result of the May 2020 Board decision and implemented by an October 2020 rating decision. Hemorrhoids and infectious hepatitis were rated as non-compensable. The Veteran’s combined disability evaluation was 50 percent. Thus, the percentage requirements for a TDIU were not met. 38 C.F.R. § 4.16(a). Second, the Board finds the evidence does not show the Veteran was unable to follow or maintain a substantially gainful occupation. The Veteran’s VA treatment records and November 2009 VA examination showed PTSD symptoms of anxiety, chronic sleep impairment, disturbances in mood and motivation, impaired judgment and difficulty in establishing and maintaining effective social relationships. The November 2009 VA examination noted the Veteran has no close friends and has difficulty emotionally. Similarly, in a February 2015 statement the Veteran indicated he had difficulty with avoiding family members. The November 2009 VA examiner noted a pattern of disruption with social interactions but not an inability to establish and maintain effective relationships. The examiner opined that the Veteran’s current level of emotional distress would not preclude the Veteran from working full time on a consistent basis. The examiner indicated the Veteran could tolerate routine workplace stress and interact appropriately with others in a work environment. The examiner noted the Veteran was not working secondary to retirement. The Veteran’s September 2017 TDIU application indicated he last worked full-time in 2006 and had completed two years of college. The Veteran indicated he retired. The file indicates the Veteran worked as a quality assurance specialist prior to his retirement. In an October 2020 memorandum, the Director of Compensation Service concluded there is no evidence of inability to perform sedentary employment due to service-connected conditions prior to November 17, 2016. Overall, the Board finds the Veteran’s service-connected disabilities alone do not preclude gainful employment. The Veteran has not described, and the evidence does not reflect significant occupational impairment from PTSD, hemorrhoids, and infectious hepatitis during the relevant period. The Board has also considered the lay evidence of record. In a September 2017 statement, the Veteran reported difficulty being at work and not wanting to be there. During the May 2016 Board hearing the Veteran stated he could not handle the work stress. The Veteran’s training and expertise as a quality assurance specialist qualifies him to work in a variety of physical or sedentary positions, including those that would entail limited interaction with others and independent work. The Board finds the November 2009 VA examination to be most probative as the examiner fully addressed the degree of functional impairment in a regular work environment due to PTSD based on the lay and medical evidence of record. In sum, the probative medical evidence is against a finding of unemployability during the period on appeal. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved and the claim to a TDIU is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.