Citation Nr: 21011531 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-16 972 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b) is denied. FINDING OF FACT The Veteran’s ability to secure or follow substantially gainful employment was not precluded by his service-connected disabilities. CONCLUSION OF LAW The criteria for a finding of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the Veteran’s surviving spouse. The Veteran died in May 2013. In April 2014, the AOJ notified the appellant that she was formally recognized as a substitute claimant in the Veteran’s TDIU appeal. Additionally, the record reflects that the appellant received a letter in October 2020 indicating that she could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the appellant does not have a pending hearing request. Additionally, the appellant previously provided testimony in a hearing with a Veterans Law Judge in May 2015. The May 2015 hearing transcript has been considered in the adjudication of this case. Extraschedular TDIU The appellant asserts that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As an initial matter, the Board finds that the schedular criteria for TDIU have not been met. Service connection was in effect for: PTSD at 30 percent disabling, eczema at 10 percent disabling, and urticaria at 10 percent disabling. The Veteran’s combined evaluation was 40 percent from July 27, 2010. As he did not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability resulting in a combined rating of at least 70 percent, the schedular criteria have not been met. Accordingly, the claim for TDIU on a schedular basis must be denied. When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating on an extraschedular basis may nonetheless be granted in cases when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. § 4.16(b). The Court of Appeals for Veterans Claims held that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) has economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component is the claimant’s ability to secure or follow substantially gainful occupation employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran’s history, education, skill, and training. Id. Additionally, attention must be given whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Further, attention should be given whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. The case was referred to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis. In an October 2019 advisory opinion, the Director of Compensation Service determined that TDIU is not warranted on an extraschedular basis as no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran’s unemployability. Having reviewed the record, the Board finds the weight of evidence demonstrates that entitlement to TDIU on an extraschedular basis is not warranted. The record indicates that the Veteran did not engage in substantially gainful employment during the appeal period prior to his death. In an October 2010 VA examination, the Veteran reported that he had not worked for at least 2 years. The inquiry now turns to whether the Veteran was capable of following a substantially gainful occupation due to service-connected disabilities. Based on a review of the evidence, and taking into consideration the Veteran’s level of education, work experience, and resulting impairment from service-connected disabilities, the Board finds that the evidence is against a finding of entitlement to TDIU. The Board has considered the Veteran’s employment history and education. With respect to employment history, the Veteran reported work history as a salesman for 22 years. See October 2010 VA PTSD Examination. Additionally, his reported education level consists of high school and a couple of years of trade school. See id. The most probative evidence of record indicates that the Veteran’s physical ability to perform occupational tasks was not impaired by service-connected PTSD, eczema or urticaria. With respect to PTSD, an October 2010 VA examination did not reveal any physical impairment. With respect to the skin disabilities, January 2011, May 2012, and August 2012 VA skin examinations did not reveal any functional impact or impairment in occupational functioning. Additionally, the record indicates that the Veteran’s mental ability to perform occupational tasks was impaired by service-connected PTSD, but not eczema or urticaria. January 2011, May 2012, and August 2012 VA skin examinations did not reveal any functional impact or impairment in occupational functioning attributed to his skin disabilities. An October 2010 VA PTSD examination noted the Veteran’s report of problems with concentrating, difficulty with memory, irritability, anger, difficulty trusting people, and sleep disturbances. An October 2010 addendum opinion noted that the Veteran experienced difficulty concentrating and social impairment, including distrust and dislike of people because he was easily irritated. However, the Board finds that the Veteran’s impairment in occupational functioning due to PTSD was not so severe as to preclude substantially gainful employment. The October 2010 examiner noted that the Veteran complained of problems concentrating, but did not show difficulty concentrating during the examination. Mental status examination revealed that the Veteran’s concentration, memory, thought process, orientation, behavior, and communication were within normal limits and appropriate. He was observed to be able to understand directions and did not have slowness of thought or appear confused. To the extent that the Veteran did experience some social impairment, it is noted that he nonetheless endorsed good relationships with former supervisors and coworkers. Additionally, there was no suspiciousness present during the examination. Further of note, the Veteran reported during the examination that his current unemployment was not due primarily to the effects of a mental condition. In light of the above, the Board finds that though there is some impairment in mental ability, it was not so severe as to preclude all forms of employment. In sum, the Veteran had no physical impairments associated with his service-connected PTSD, eczema, or urticaria that would preclude employment. Though he had some mental impairment in relation to social, concentration, and memory functioning, the evidence ultimately indicates that any such impairment was not so severe as to preclude all employment, to include sales. He retained the ability to function socially. He endorsed good relationships with his supervisor and some coworkers. His behavior and communication during the examination and treatment appointments with VA treating clinicians were appropriate. Additionally, concentration and memory functioning were revealed to be within normal limits despite his report of difficulty concentrating. As a final matter, Dr. J.E. indicated in a March 2019 private opinion that the Veteran’s PTSD, angioneurotic edema, and hives contribute to his unemployability. However, Dr. J.E. did not provide a rationale or describe any such impairment in occupational functioning. Additionally, Dr. J.E. noted in a March 2019 letter to the Veteran’s representative that he would need an updated psychological report to rate the Veteran’s PTSD. Finally, Dr. J.E. also considered nonservice-connected disabilities. For these reasons, his opinion holds no probative value and is outweighed by the October 2010, January 2011, May 2012, and August 2012 VA examinations, which are based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For these reasons, the Board finds the Veteran’s service-connected disabilities may result in some occupational impairment, but the weight of the evidence does not demonstrate that his service-connected disabilities alone were of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. The present case is not so exceptional as to result in an award of a TDIU. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted and the appeal is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vang, Stephanie 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.