Citation Nr: 21024642 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 09-29 907 DATE: April 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. FINDING OF FACT The Veteran’s service-connected major depressive disorder has not been shown to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to November 1967. In April 2011, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. In a December 2017 decision, the Board denied the Veteran’s claim. He then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court vacated the decision and remanded the matter to the Board for development consistent with the parties’ Joint Motion for Partial Remand (Joint Motion). The Board remanded the claim for additional development, most recently in August 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU The Veteran generally contends that he is entitled to a TDIU. The Board again finds following a review of the record that his claim is not warranted, and it is denied. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Service connection is currently in effect for major depressive disorder rated as 30 percent disabling. Thus, the Veteran does not meet the schedular criteria for consideration of entitlement to a TDIU at any time during the appeal period. 38 C.F.R. § 4.16 (a). The remaining question before the Board, then, is whether he is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disability and thus entitled to consideration of a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). Notwithstanding the circumstances of not meeting the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a), all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Indeed, a total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability on an extraschedular basis. 38 C.F.R. § 4.16 (b). In order to meet this standard, the record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). This matter was remanded by the Board in March 2019 and August 2020 to make additional efforts toward procuring any available records from the Social Security Administration (SSA) consistent with the August 2018 Joint Motion. June 2008 correspondence from SSA indicated that records requested by VA in connection with the Veteran’s claim did not exist and further efforts to locate any records would be futile. However, subsequent correspondence from the Veteran’s congressional representative suggested the contrary, in that it resulted in the provision of documents related to the Veteran’s SSA benefits. Multiple requests were made to the SSA National Record Center asking to obtain all of the Veteran’s available federal records, to include all administrative records related to his claim for disability benefits and any associated medical records. The SSA responded to these records requests in October 2019 and January 2021 stating that such records did not exist and further efforts to obtain them would be futile. Neither the Veteran nor his representative have submitted any further information related to the Veteran’s award of SSA disability benefits. The Board finds that the Veteran is not unemployable as a result of his service-connected disability. Entitlement to TDIU, to include referral for consideration of a TDIU on an extraschedular basis, is not warranted. The Veteran reported at his Board hearing that he stopped working in 2002 due to his nonservice-connected disabilities, namely, his diabetes, diabetic neuropathy, and his lumbar spine disability. On May 2012 VA psychiatric examination, the Veteran did not report or suggest that his diagnosed major depressive disorder had an impact on his employment. To date, he has not made any statements suggesting that his psychiatric disability impacted his ability to work outside of his general assertion that he believes he is entitled to a TDIU. The VA examiner characterized the occupational and social impairment related to the Veteran’s depressive disorder as “due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” The evidence thus demonstrates that the Veteran left employment due to his physical disabilities rather than to his service-connected psychiatric disability. The Board finds the preponderance of the evidence is against the claim; entitlement to TDIU is denied. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.