Citation Nr: 21009575 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 10-13 317 DATE: February 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis for the period prior to October 26, 2016 is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran consistently has reported that, following his service separation, he was self-employed and owned his own business repairing office equipment until he retired in approximately 2010. 2. The record evidence does not show that the Veteran’s service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1952 to May 1954, including in combat in the Republic of Korea during the Korean Conflict. In September 2016, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. At that time, the Board also remanded entitlement to an increase rating for PTSD. This issue was withdrawn from appellate status while in remand status. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives as to TDIU. The Board directed in pertinent part that the AOJ refer the Veteran’s TDIU claim to the Director, Compensation Service (Director), for consideration of extraschedular entitlement. A copy of the Director’s September 2020 decision on this issue is associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In a July 2019 rating decision, the AOJ assigned a 100 percent schedular rating effective October 26, 2016, for the Veteran’s service-connected PTSD. The AOJ subsequently concluded that receipt of this rating rendered the issue of entitlement to a TDIU moot effective October 26, 2016. Under the facts and current ratings assigned, the Board agrees. Service connection is not in effect for disabilities separately rated as 60 percent disabling or greater, and thus, entitlement to SMC is not raised. The question, therefore, is whether TDIU is warranted on an extraschedular basis prior to the date the 100 percent rating has been assigned. The Board notes that, while this case was on remand at the AOJ, the Veteran did not respond to repeated correspondence sent by VA requesting that he provide information critical to his TDIU claim, including completing a VA Form 21-8940 (formal TDIU claim) and providing his post-service employment history. In this regard, the Court has held that “[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board will proceed to adjudicate this claim. Entitlement to a TDIU, including on an extraschedular basis The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to a TDIU on an extraschedular basis. The Veteran essentially contends that his service-connected disabilities, alone or in combination, prevented him from securing or following a substantially gainful occupation, entitling him to a TDIU. For the period prior to October 26, 23016, the Veteran was in recent of a noncompensable rating for bilateral hearing loss, a 10 percent rating for tinnitus, and a 30 percent rating for PTSD prior March 22, 2010, and 50 percent thereafter. Therefore, schedular criteria for TDIU consideration outlined in 38 C.F.R. § 4.16(a) are not met for the period under consideration. The Board will not consider it on an extraschedular basis as outlined in 38 C.F.R. § 4.16(b). The record evidence shows that the Veteran’s service-connected disabilities do not preclude his employability. As noted in the Introduction, the Veteran did not provide information concerning his post-service employment history in response to VA’s request for this information. He reported consistently to his post-service treating clinicians that, following his service separation, he was self-employed and owned his own business repairing office equipment (apparently at VA facilities in Boston) until he retired in approximately 2010. For example, on VA PTSD examination in March 2009, the Veteran reported that he continued to be self-employed and had been self-employed repairing office equipment “for many years.” The VA examiner stated that the Veteran’s “symptoms have not significantly affected his work or financial security.” On VA PTSD Disability Benefits Questionnaire (DBQ) in July 2012, the Veteran reported that, following his service separation, he “owned a precision equipment business for [about] 40 years. He had 1-2 employees and a partner. He did work for servicing all the typewriters and fax machines. He retired about two years ago. These records do not reflect that the Veteran’s retirement was due to impact of his service-connected disabilities. On VA hearing loss and tinnitus DBQ in July 2012, the Veteran reported that the functional impact of his service-connected bilateral hearing loss was that he experienced great difficulty hearing in conversations on a daily basis and used bilateral hearing aids to communicate. He also reported that his service-connected tinnitus “is bothersome; however, hearing aids do help minimize the ringing.” Following VA PTSD DBQ in February 2015, the VA examiner concluded: While the Veteran’s PTSD symptoms would likely cause a mild to moderate degree of occupational impairment, it does not appear to be the sole cause of his present [un]employment (i.e., decreased mobility and energy due to aging). [The] Veteran had a normal retirement and did not report any occupational impairment related to PTSD while he owned and operated his business. The record evidence shows that his service-connected disabilities, alone or in combination, did not preclude his employability for the period prior to October 26, 2016. It is undisputed that the Veteran has been retired since approximately 2010, including throughout the appeal period. He also has reported consistently to his post-service VA treating clinicians that his service-connected disabilities did not interfere with his prior self-employment when he owned his own company repairing office equipment for several decades after his service separation. Several VA examiners also concluded in 2009, 2012, and in 2015 that the Veteran’s service-connected disabilities did not interfere with his occupational functioning. The March 2009 VA PTSD examiner stated that the Veteran’s “symptoms have not significantly affected his work or financial security.” Although the Veteran reported that his service-connected tinnitus was “bothersome” on VA hearing loss and tinnitus DBQ in July 2012, his bilateral hearing aids “help minimize the ringing.” The February 2015 VA PTSD DBQ examiner concluded that the Veteran’s service-connected PTSD symptoms only caused mild to moderate occupational functioning but was not “the sole cause of his present [un]employment.” Taken together, the record evidence as a whole does not support finding that the Veteran’s service-connected disabilities, alone or in combination, precluded him from securing or maintaining substantially gainful employment. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a TDIU. In making this determination, the Board has considered the Veteran’s service-connected disabilities in light of this training, education, and work history. In summary, the Board finds that the criteria for entitlement to a TDIU on an extraschedular basis have not been met. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.