Citation Nr: 21011606 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-24 335 DATE: March 2, 2021 ORDER A total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU) prior to May 28, 2009, on an extraschedular basis, is denied. FINDING OF FACT Prior to May 28, 2009, the Veteran's service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for a TDIU prior to May 28, 2009 have not been met. met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to April 1969. The Veteran died in May 2019 and his surviving spouse has been substituted as the appellant. In February 2008, the Board denied entitlement to TDIU. The Veteran did not file an appeal and the decision became final. In December 2008, he submitted a new claim for TDIU. In September 2017 and December 2018, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Legal Criteria The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2019). TDIU ratings 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. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2019). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2019). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2019). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2019). The sole fact that a Veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed is generally insufficient to demonstrate that he is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2019) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU) prior to May 28, 2009 The Veteran contends that he has been unable to work due to his service-connected posttraumatic stress disorder (PTSD) and ischemic heart disease since October 2001. See September 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran has been granted a TDIU from May 28, 2009. See September 2018 rating decision. Therefore, the issue of entitlement to TDIU beginning May 28, 2009 is moot. Service connection is currently in effect for coronary artery disease, PTSD, diabetes mellitus, Type II, tinnitus, bilateral hearing loss, a surgical scar on the chest, and erectile dysfunction. The Veteran has a combined disability rating of 70 percent from May 28, 2009. He does not meet the schedular criteria for consideration of TDIU prior to May 28, 2009. See 38 C.F.R. § 4.16 (a) (2019). In a February 2008 rating decision, the Board denied entitlement to a TDIU. The Veteran did not file an appeal and the decision became final. The Veteran filed a new claim for TDIU in December 2008. The timeframe the Board is considering begins February 27, 2008, the day after the final Board decision on February 26, 2008, but no earlier. The medical evidence of record does not show that the Veteran's service-connected disabilities prevented him from obtaining or engaging in any form of substantially gainful employment prior to May 28, 2009. In his aforementioned VA Form 21-8940, the Veteran indicated that he last worked full-time in September 2002 for Alabama Power Company in Power Delivery. He reported a high school education. He was employed with Alabama Power Company from August 1971 to September 2002, a period of over 30 years. Social Security Administration (SSA) records show the Veteran was awarded disability benefits effective February 13, 2002, due to the primary diagnosis of anxiety related disorders and secondary diagnosis of ischemic heart disease. The evidence shows the Veteran had no disciplinary problems while working. Towards the end of his employment, he reported having a difficult time sitting for long periods, which he related to nervousness/anxiety. The report of a March 2009 VA PTSD examination shows the examiner opined that the Veteran did not have total occupational and social impairment due to PTSD. Rather, he concluded that there was an occasional decrease in work efficiency due to intermittent issues with PTSD. In a December 2020 Advisory Opinion, the Director of Compensation Service concluded that, after giving consideration to all relevant evidence; including, but not limited to the Veteran’s education, training, and work history, the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to May 28, 2009, and specifically from February 27, 2008 to May 27, 2009, and a TDIU on an extraschedular basis was denied. The evidence of record does not describe the functional impact of the Veteran’s ischemic heart disease until 2016. The Board concludes that the most probative evidence of record weighs against finding that the Veteran's service-connected disabilities precluded him from obtaining or engaging in any form of substantially gainful employment prior to May 28, 2009, and specifically from February 27, 2008 to May 28, 2009. In this regard, the Veteran has a high school education and many years of experience in power delivery, and he retired from power delivery after working for the same company for 30 years. SSA found him unemployable, due to now service-connected conditions. The Board, however, is not bound by determinations of other Federal agencies. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (holding that Social Security Administration determinations are not controlling for VA purposes). The Veteran does not contend that his service-connected hearing loss, tinnitus or diabetes prevented him from maintaining gainful employment. The Veteran’s private physician submitted a statement in August 2003 indicating that the Veteran’s PTSD affected his ability to work with others, but this was outside of the time-period on appeal. Moreover, his private physician and his VA social worker submitted statements in September 2011 and February 2013, indicating that the Veteran was not capable of gainful employment, but as noted, the Veteran has already been granted a TDIU from May 2009. Furthermore, the May 2009 VA examiner and the Director of Compensation Service, in December 2020, both concluded that the Veteran was not unemployable due to service-connected disabilities between February 27, 2008 and May 28, 2009. Moreover, the Board recognizes that the Veteran is competent to describe the symptoms and associated limitations of his disabilities. However, there is no evidence of record showing that the Veteran was ever terminated from or denied employment due to his service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU prior to May 28, 2009. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.