Citation Nr: 21013473 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-10 933A DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 3, 2010 is denied, and referral for extraschedular TDIU is not warranted. FINDING OF FACT Prior to November 3, 2010, the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW Prior to November 3, 2010, the criteria for a TDIU have not been met on a schedular basis and referral for extraschedular consideration was not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1972 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was remanded in a September 2020 rating decision because of the significant impact that the issue of entitlement to service connection for a mental health disability (which was remanded for additional development in the September 2020 decision) could have on the issue of entitlement to a TDIU rating. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. The Board notes that since the September 2020 Board remand decision, the Veteran was awarded TDIU effective November 3, 2010 and therefore the issue before the Board that remains is whether the Veteran was entitled to TDIU prior to November 3, 2010. A Supplemental Statement of the Case was issued in January 2021 where the Agency of Original jurisdiction found that the Veteran was not entitled to TDIU prior to November 3, 2010. This issue is now properly before the Board for adjudication. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 3, 2010. The Veteran asserts that he is entitled to TDIU due to the impact of his service connected disabilities on his ability to obtain and maintain substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Total disability ratings for compensation based upon individual unemployability 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. Threshold eligibility is established when a Veteran has a single service-connected disability ratable at 60 percent or more, or two or more disabilities rated a combined 70 percent or more, provided at least one disability is ratable at 40 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16 (b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation in § 4.16(b) as having two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. This question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). For the appeal period, the Veteran’s service-connected disabilities included prostate cancer evaluated as 40 percent disabling and erectile dysfunction which was evaluated as zero percent disabling. His combined rating at that time was 40 percent. As such, the Veteran does not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) for the appeal period. The initial extraschedular referral decision under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Board further finds that the preponderance of the evidence is against referral for extraschedular consideration of TDIU prior to November 3, 2010. Having reviewed the Veteran’s record, there is no plausible evidence that the Veteran’s service-connected prostate cancer and erectile dysfunction resulted in the inability to secure and follow a substantially gainful employment prior to November 3, 2010. The Board acknowledges the July 2010 VA examination report wherein the examiner noted that the Veteran has urinary incontinence requiring two pads a day which began in December 2008 following the radical prostatectomy. However, the examiner clearly, explicitly, and unambiguously indicated that the Veteran’s symptoms of prostate cancer do not preclude him from working and the Veteran himself did not report that his prostate cancer symptoms interfered with work in any way. Furthermore, the record has not shown that the Veteran’s erectile function disability interfered with employment in any way for the period on appeal. As such, the Board finds the record does not contain sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to November 3, 2010. Accordingly, referral of this matter to the Director of Compensation Service for consideration of an extraschedular rating for the period on appeal is not warranted. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.