Citation Nr: 21014828 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-18 697A DATE: March 15, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, from April 29, 2008 to April 19, 2009, from July 1, 2009 to August 13, 2010, and from December 1, 2010 to February 8, 2011, is denied. FINDING OF FACT From April 29, 2008 to April 19, 2009, July 1, 2009 to August 13, 2010, and December 1, 2010 to February 8, 2011, the Veteran does not meet the schedular criteria for assignment of a TDIU, and his service-connected disabilities do not render him unable to secure and follow substantially gainful occupation. CONCLUSION OF LAW From April 29, 2008 to April 19, 2009, July 1, 2009 to August 13, 2010, and December 1, 2010 to February 8, 2011, the criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from May 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2020, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for appellate disposition. Entitlement to a TDIU The Veteran contends that his service-connected disabilities have made it difficult for him to secure and maintain employment. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). Additionally, 38 C.F.R. § 4.16 (b) has 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. Ray v. Wilkie, 31 Vet. App. 58 (2019) A review of the record shows that the Veteran is service connected for coronary artery disease (CAD), hypertension, and a surgical chest scar with a combined rating of 20 percent from April 29, 2008 to April 19, 2009. A temporary 100 percent evaluation was awarded from April 19, 2009, until July 1, 2009, when the 20 percent evaluation was continued. From September 25, 2009, the Veteran is service connected for CAD, hypertension, and a surgical chest scar with a combined rating of 60 percent. A 100 percent evaluation was awarded from August 13, 2010, until December 1, 2010, when the evaluation for CAD was reduced to 30 percent disabling, for a combined evaluation of 40 percent. As such, the Veteran does not meet the schedular criteria for assignment of a TDIU. However, a TDIU may be granted on an extraschedular basis under 38 C.F.R.§4.16 (b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. A review of the record shows that the Veteran last worked full-time in 2010 and retired from his job as a carrier technician with the United States Postal Service in 2011. He reportedly stopped working as a result of his service-connected disabilities. The Veteran has a high school diploma and has received general studies training while employed. Social Security Administration (SSA) records show the Veteran applied for Social Security Disability Insurance (SSDI) based on the effects of his heart disease; however, entitlement to that benefit was not found. At a May 2009 VA examination, the Veteran’s CAD was noted to cause fatigue, shortness of breath, dizziness, and syncope attacks. The Veteran also reported that his hypertension caused fatigue and shortness of breath, with exertion. The examiner noted that the Veteran’s CAD and hypertension had an effect on the Veteran’s usual occupation and activities of daily living, causing fatigue and shortness of breath, with exertion. At an October 2010 VA examination, the Veteran’s CAD and hypertension symptoms were not markedly different than those reported and noted at his May 2009 examination. The examiner did not evaluate the impact of CAD and hypertension on the Veteran’s usual occupation because the Veteran had retired. At a May 2013 VA examination, the examiner stated that the impact of CAD and hypertension on the Veteran’s ability to work was that the Veteran could not do any heavy activities such as heavy lifting and should not do stressful activities that interfere with his ability to work. A review of the record shows that the Veteran receives periodic treatment for his service-connected disabilities. However, a review of the treatment notes of record does not show the Veteran to have symptoms worse than those reported at his VA examinations. As the Veteran does not meet the schedular criteria for assignment of a TDIU, in the July 2020 remand, the Board referred the case to the Director of Compensation Service for a decision regarding the Veteran’s entitlement to a TDIU on an extraschedular basis. In a December 2020 Advisory Opinion, the Director of Compensation Service denied entitlement to a TDIU on an extraschedular basis. In this regard, the Director of Compensation Service found that the Veteran was not working as he had retired and that his service-connected disabilities were not of a severity to prevent the Veteran from obtaining and maintaining gainful employment. The Board agrees with the finding made by the Director of Compensation Service. In this regard, the Board finds that the Veteran’s service-connected disabilities do not prevent him from obtaining and maintaining employment. The Board does not doubt the significant functional impact of the Veteran’s disabilities on his ability to perform physical tasks required to work, considering his work and education history. However, he is adequately compensated for such overall moderate functional limitations through the assigned, schedular ratings.  Cf. 38 C.F.R. § 3.321(a) (“The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.”) Therefore, the Board finds that the Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment consistent with his education and industrial experience. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis, from April 29, 2008 to April 19, 2009, from July 1, 2009 to August 13, 2010, and from December 1, 2010 to February 8, 2011, is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.