Citation Nr: 21015174 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-03 852A DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 5, 2020 is denied. FINDING OF FACT Prior to November 5, 2020, Veteran’s service-connected disabilities did not prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW Prior to November 5, 2020, the criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1981 to September 1984 and from March 1985 to December 1986. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. During the August 2018 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of TDIU claims; identified potential evidentiary defects which included the effect of the Veteran’s service-connected disabilities on his employability; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 60 days to allow for the submission of additional evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Board remanded the Veteran’s TDIU claim in February 2019. Thereafter, in a November 2020 rating decision, the RO awarded the Veteran entitlement to TDIU effective November 5, 2020. As this award did not constitute a full grant of the benefit sought, the TDIU issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). TDIU prior to November 5, 2020 The Veteran has been awarded a TDIU, effective November 5, 2020. He contends that TDIU is warranted prior to this date. See, e.g., the Veteran’s February 2021 Informal Hearing Presentation (IHP). TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is VA policy to grant TDIU on an extraschedular basis, when the percentage requirements are not met, when the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this case, prior to November 5, 2020, the Veteran did not meet the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU, as service connection prior to November 5, 2020, was in effect for adjustment disorder with mixed anxiety and depression associated with lung cancer, rated as 50 percent disabling; posttraumatic residuals of the right and left wrist, each rated as 10 percent disabling; and post residuals of lung cancer treatment, rated as noncompensable. His overall combined rating was 60 percent. As such, the Board will consider whether TDIU is warranted under 38 C.F.R. § 4.16(b). In order to establish entitlement to TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board acknowledges the Veteran’s contention that TDIU should be awarded prior to November 5, 2020. However, based on the evidence of record, the Board finds that TDIU prior to November 5, 2020, is not warranted. The Board recognizes that the Veteran, who is 57 years old, was employed as a medical transponder from June 2009 to September 2010 and prior to that was employed as a construction supervisor for five years. He last worked in 2010. The Board acknowledges the Veteran’s contention that his service-connected psychiatric disorder, wrist disabilities, and lung cancer affect his employability. However, the Board finds that the objective evidence of record outweighs his contention. Specifically, the Veteran was provided a VA examination for his adjustment disorder in August 2014. At that time, the VA examiner opined that the Veteran’s psychiatric impairment was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency ans ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner documented symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Notably, the Veteran did not report on his July 2011 claim for TDIU that the psychiatric disorder affected his employability. The Board also notes that while the Veteran reported on his July 2011 claim for TDIU that the residuals of lung cancer affected his employability, he reported during an August 2014 VA respiratory examination that the lung disability did not affect such. Further, a June 2014 examination conducted by P.B., M.D. for the Veteran’s claim for Social Security Administration (SSA) benefits noted the Veteran’s insomnia, decreased appetite, and inability to get along with others. He also had shortness of breath and could not walk more than half a block, stand for more than 10 minutes, or sit for more than 20 minutes. However, during a July 2014 psychological examination in conjunction with the SSA claim, the Veteran reported that he lost his job as a construction manager due to being laid off and that the wrist disabilities did not affect his job as he was in a managerial position where he ordered materials, set up schedules, and managed the payroll. Although he was not able to perform the physical requirements of a medical transponder, the Board finds that the evidence shows that the Veteran would be able to perform substantial gainful employment, in particular that which is of a sedentary nature such as a managerial position or a job involving primarily working at a desk. The Veteran also reported during the psychological evaluation that he had a positive relationship with his bosses and co-workers in all of his jobs. He further reported no problems with basic self-care. A February 2015 mental health evaluation similarly noted the Veteran’s positive relationships with co-workers. Although the examiner reported “severe” mood disorder, the Veteran was of “average” intelligence. Accordingly, while the evidence prior to November 5, 2020, indicates some occupational impairment, it does not indicate that the Veteran was unable to secure gainful employment. The Board is also cognizant that the Veteran’s highest level of education is completion of high school. See the Veteran’s July 2011 claim for TDIU. However, even with this educational background, the evidence simply does not show that the Veteran was unable to work in any form of substantial gainful employment as a result of his service-connected disabilities prior to November 5, 2020. Indeed, there is no indication in the examination reports or other evidence of record that there were any restrictions on the Veteran’s ability to accomplish tasks in any setting as a result of the service-connected disabilities such that he would not be able to maintain substantial gainful employment. Prior to November 5, 2020, the most probative evidence does not indicate that the Veteran was unable to follow substantially gainful employment. As noted above, evidence prior to this date does not indicate that the Veteran’s symptoms precluded employment. Thus, referral of the TDIU claim to the Director for extraschedular consideration for any period prior to November 5, 2020, is not warranted. The preponderance of evidence is against a finding that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation prior to that date. Therefore, there is no reasonable doubt to be resolved, and the Veteran’s claim for entitlement to a TDIU prior to November 5, 2020, must be denied. 38 U.S.C. § 5107(b). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.