Citation Nr: 21011712 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-29 790 DATE: March 2, 2021 ORDER Entitlement to an extraschedular TDIU (total disability rating based on individual unemployability) for the period prior to October 22, 2010, is denied. FINDING OF FACT For the rating period prior to October 22, 2010, the Veteran’s service-connected disabilities are not shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for an extraschedular TDIU prior to October 22, 2010, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1963 to September 1966. He timely appealed certain matters from a July 2010 rating decision. Because the appeal included claims for higher ratings, and the Veteran contended that service-connected disabilities prevented him from working, a claim for TDIU was inextricably intertwined with the Veteran’s appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In May 2017, the Board remanded the matter for further development. Subsequently, in November 2018, the Board awarded TDIU benefits on a schedular basis from October 13, 2017. The Board also remanded the matter of extraschedular TDIU for the rating period prior to October 13, 2017, for referral to the Director, Compensation and Pension Service. Since then, in March 2019, the AOJ assigned a 50 percent disability rating for service-connected depressive disorder, effective October 22, 2010. In July 2020, a Decision Review Officer assigned an effective date of October 22, 2010, for the award of TDIU benefits—that is, the first date on which schedular eligibility criteria for TDIU were met. Because the intertwined TDIU claim required adjudication over the course of the entire appeal period—that is, from November 9, 2009, and prior to October 22, 2010, the Board again remanded the matter of extraschedular TDIU in October 2020. In October 2020, the attorney of record motioned for withdrawal from legal representative. In February 2021, VA acknowledged the withdrawal of the Veteran’s representative. The Veteran is currently pro se in this appeal. Here, substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Examination reports and opinions are thorough and adequate for the Board to render the following decision in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). As noted above, the Veteran submitted initial claims for service connection and compensation on November 9, 2009; his appeal for higher ratings, which includes TDIU entitlement, dates back to then as well. Rice, 22 Vet. App. at 453-454. The evidence of record reveals that he last worked in November 2008. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). Where the percentage requirements of disability ratings for compensation regarding unemployability under 38 C.F.R. § 4.16(a) are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. Such cases are submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). An advisory opinion was provided by the Executive Director of Compensation Service in December 2020, following administrative review of the Veteran’s claim for extraschedular consideration. The administrative review revealed that, prior to October 22, 2010, service connection was in effect for the following disabilities: diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; peripheral neuropathy of right lower extremity (sciatic nerve), rated as 10 percent disabling; and peripheral neuropathy of left lower extremity (sciatic nerve), rated as 10 percent disabling. The Veteran had last worked as a security guard in November 2008. He had completed four years of high school. His diabetes mellitus was treated with oral medications and diet. Although he complained of fluctuations in blood sugar causing symptoms of dizziness and disorientation and lethargy, there was no evidence of hospitalization for hypoglycemia. The Veteran had decreased sensation to vibration on left ankle and back of left foot due to neuropathy, and decreased sensation to vibration on right lower extremity. While limitations were noted, the cumulative evidence does not support a finding that any service-connected disability, either alone or in conjunction, was so severe as to preclude all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Following the administrative review, entitlement to extraschedular TDIU was not established. As the claim was referred to the Executive Director of Compensation Service and denied, the Board may decide independently whether an extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b). Social Security records reveal that the Veteran had a twelfth-grade education and received special job training as a cement mason. He first worked as a laborer and then as a security guard. He stopped working as a security guard in November 2008, following a work-related right shoulder injury. VA records show assessments of diabetes mellitus and elevated blood sugars and hyperlipidemia in March 2010, following the death of his daughter in a motor vehicle accident. The Veteran was advised about the importance of diabetic diet and to eat meals regularly. In June 2010, his diabetes mellitus was well controlled. He did have left lower extremity pain involving the ankle, knee, and hip; his medications were continued, and knee X-rays were scheduled for further evaluation. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant an extraschedular TDIU. Prior to October 22, 2010, the evidence does not demonstrate that service-connected disabilities made him unable to secure or follow any substantially gainful occupation. Here, the evidence suggests that a nonservice-connected disability prevented the Veteran from continuing to work as a security guard, rather than any symptoms associated with his service-connected disabilities. Ultimately, the Board places far more probative weight on the Veteran’s work history, as well as the results of evaluations of his service-connected disabilities. The Board concludes that the advisory opinion of the Executive Director of Compensation Service outweighs the Veteran’s lay assertions regarding unemployability. While the Executive Director acknowledged limitations from service-connected disabilities, the cumulative evidence does not support a finding that service-connected disabilities were so severe as to preclude all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. The preponderance of the evidence is against the claim; there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. While the Board did refer the claim for extraschedular consideration under 38 C.F.R. § 4.16(b), and the Executive Director denied an extraschedular rating, such referral does not bind the Board to award an extraschedular TDIU. See Ray v. Wilkie, 31 Vet. App. 58, 61 (2019). In essence, the Board ultimately weighed and discussed the pertinent evidence; significantly, the Veteran had stopped working in 2008 due to a work-related injury. Symptoms associated with his service-connected disabilities were not of such severity or frequency to preclude substantially gainful activity. The evidence does not support a grant of the benefits sought. In coming to this conclusion, the medical, occupational, and educational record was considered. Accordingly, entitlement to an extraschedular TDIU is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.