Citation Nr: 21009011 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-14 048 DATE: February 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to February 27, 2015, is denied. FINDING OF FACT The preponderance of the evidence shows there is no basis to conclude that the Veteran was unable to secure or follow a gainful occupation based on his service-connected disabilities prior to February 27, 2015. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from December 1967 to July 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The matter was previously remanded in July 2018 and December 2019 for further development. In the December 2019 Board remand, the RO was asked to obtain a completed VA Form 21-4192 from Hyundai Motor MFG AL. The Board notes that several attempts were made by the RO in an effort to obtain a completed VA Form 21-4192 from both the Veteran and Hyundai Motors but were unsuccessful. See September and October 2020 Initial Private Third-Party Letter and Subsequent Development Letter. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter returns to the Board for appellate consideration. In an October 2020 rating decision, the RO granted TDIU effective February 27, 2015, the date the Veteran was granted service connection for peripheral neuropathy and when the evidence demonstrated his service-connected disabilities precluded employment. As the grant for TDIU did not span for the entire period on appeal, the issue of entitlement to TDIU for an earlier period is still on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to a TDIU prior to February 27, 2015. The Veteran contends that his service-connected disabilities warrant assignment of a TDIU for the period prior to February 27, 2015. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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 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). However, a total rating based on individual unemployability may still be assigned to a Veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of Compensation and Pension (C&P) for extraschedular consideration. The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. 38 C.F.R. § 4.16(b). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294. While the Board is required to refer a claim for a TDIU award on an extraschedular basis to the Director for initial consideration, the Director’s decision is not binding on the Board, nor must it be afforded the probative value of a medical opinion. Rather, it is to be considered an administrative decision that the Board reviews de novo, and the Board may grant a TDIU on an extraschedular basis after the issue has first been considered by the Director. 38 C.F.R. § 4.16; see Wages v. McDonald, 27 Vet. App. 233 (Board is authorized to award an extraschedular TDIU after obtaining the Director’s decision). For the period under consideration, the Veteran has been awarded service connection for: depressive disorder not otherwise specified (claimed as posttraumatic stress disorder), evaluated as 70 percent disabling; bilateral hearing loss, evaluated as noncompensable; and tinnitus, evaluated as 10 percent disabling. The Veteran’s combined rating is 70 percent from January 18, 2012; therefore, the Veteran’s service-connected disabilities satisfy the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). The evidence of record indicates that the Veteran last worked in November 2009 at Hyundai Motors as a maintenance team member but notes an ending date of employment as September 2010. See December 2012 VA Form 21-4192. The reason for termination was not noted. As stated above, the Veteran nor his former employer submitted an updated VA Form 21-4192 to reconcile the discrepancy and relevant missing information (i.e. reason for termination) in regard to his employment with Hyundai Motors. The December 2012 VA examination report for PTSD indicated the Veteran’s psychiatric symptoms do not prevent him from maintaining employment. The examiner noted the Veteran is capable of functioning and managing affairs independently and that his symptoms affect but do not preclude his ability to recall and follow instructions to the extent allowed by his physical status, to interact with coworkers and customers in a standard employment setting, and to tolerate stressors to which he would inevitably be exposed in a standard workplace. The April 2014 VA audiological examination report indicated the Veteran’s hearing disability affects his ability to work and noted the Veteran’s reports of difficulties understanding and hearing others both in a private and occupational setting. VA vocational rehabilitation notes in January 2015 demonstrate the Veteran sought assistance and evaluation to participate in a work clinic and that his highest level of education is a high school diploma (with two years of college studies). See April 2015 CAPRI. The Board acknowledges the Veteran’s contentions that his service-connected disabilities impacted his work, but the evidence of record does not show that his service-connected disabilities precluded him from work. Although it is unclear why the Veteran was terminated from his last position at Hyundai Motors, the December 2012 VA examiner concluded the Veteran’s PTSD symptoms had not precluded him from maintaining employment or interacting with others and that he was fully capable of functioning independently. The April 2014 VA examiner indicated that the Veteran’s hearing disability affected his ability to work and referenced the Veteran’s reports of difficulty hearing others; however, the examiner never concluded that the Veteran’s hearing disability precluded his ability to maintain employment in any way. Furthermore, there are no other opinions or medical evidence of record that contradict these medical findings or seem to suggest otherwise. Accordingly, the Board finds that the Veteran’s service-connected disabilities had not rendered him unable to secure or follow a substantially gainful occupation prior to February 27, 2015, and a TDIU is not warranted. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.