Citation Nr: 21008267 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 16-23 848 DATE: February 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 1, 2014 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not prevent the Veteran from obtaining and maintaining substantially gainful employment consistent with his education and occupational background prior to August 1, 2014. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to August 1, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1962 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for coronary artery disease (CAD) with a 10 percent rating effective September 5, 2007. The issue of entitlement to a TDIU is part and parcel of the Veteran’s appeal of the evaluation assigned to CAD by this rating decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter was most recently remanded in July 2020. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU prior to August 1, 2014 The Veteran contends that he is entitled to a TDIU prior to August 1, 2014, because his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment throughout the period on appeal. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, 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 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Director provided an Advisory Opinion in November 2020. Prior to August 1, 2014, the Veteran was service-connected for coronary artery disease (CAD) rated as 10 percent disabling; residuals of prostate cancer rated as 10 percent disabling prior to February 12, 2014 and 40 percent disabling thereafter; and erectile dysfunction rated as noncompensable. The combined disability evaluation was 20 percent from September 5, 2007; 50 percent from February 12, 2014 to August 1, 2014. These combined disability evaluations are less than the 70 percent required to meet the schedular requirements for entitlement to a TDIU under § 4.16(a). The July 2020 Board decision granted entitlement to a TDIU from August 1, 2014 to March 7, 2018, and remanded the issue of entitlement to a TDIU prior to August 1, 2014, directing that the issue be referred to the Director of Compensation and Pension for consideration under § 4.16(b). In the November 2020 Advisory Opinion, the Director of Compensation Service noted that the file had been reviewed, and concluded that the medical evidence fails to show that prior to August 1, 2014, the Veteran’s service-connected conditions had an impact on either sedentary or physical employment. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran has generally argued that his service-connected disabilities prevent him from working, and has submitted a June 2019 private opinion in which the Veteran reported that he retired early predominantly due to issues managing stress and trauma triggers. The June 2019 private opinion concludes that the Veteran’s PTSD rendered him unable to secure and follow substantially gainful employment since his early retirement in 1998. However, the Veteran’s PTSD was not service-connected until March 3, 2017. Therefore, even though medical evidence shows that the Veteran’s PTSD caused him to retire early, the Board may not consider the effects of PTSD in determining whether the Veteran is entitled to a TDIU prior to August 1, 2014. A March 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, notes that the Veteran last worked as a sales manager for an electronics company. The Veteran reports that he completed one year of college. Prior to August 1, 2014, an October 2008 VA examination shows that the Veteran’s prostate cancer residuals were urinary urgency and dribbling as well as daytime voiding every 2-3 hours and urine leakage that did not require the wearing of absorbent material. The examiner found that these residuals had no significant occupational effects and no effects on the Veteran’s usual daily activities. A February 2014 VA examination as to CAD showed that the Veteran’s METs level was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The Board notes that this level of activity should be sufficient to perform the duties of a sales manager, which is not a physically strenuous position. The examiner found that the Veteran’s CAD had no impact on the Veteran’s ability to work. A February 2014 VA examination as to erectile dysfunction also found no impact on the Veteran’s ability to work. A September 2007 VA treatment record noted that at that time the Veteran played golf 2-3 times a week and worked part-time at the golf course. He also reported intermittent walking and riding bikes. As the Veteran was able to perform this level of physical activity, his physical limitations due to service-connected disabilities would not have prevented him from obtaining and maintaining substantially gainful employment consistent with his previous work as a sales manager. While the Board recognizes that, effective August 1, 2014, the Veteran’s CAD worsened substantially, impacting his physical limitations and ability to work, prior to that date the record shows that the Veteran’s service-connected disabilities did not prevent him from working. The July 2020 referral for consideration of an extraschedular TDIU merely indicates that there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, and does not bind the Board to grant an extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58 (2019). The July 2020 remand made no factual determinations in support of the referral of entitlement to a TDIU prior to August 1, 2014. Based upon the medical evidence of record indicating that the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment consistent with his previous work experience as a sales manager, the Board finds that entitlement to a TDIU prior to August 1, 2014 must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.