Citation Nr: 21027275 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-09 381 DATE: May 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The Veteran did not meet the schedular criteria for a TDIU, and the evidence of record does not show that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to August 1963. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the matter for further development. Now the matter is before the Board. Initially, the Board notes that the RO proposed to sever service connection for polyneuropathy of the left lower extremity in July 2020, and the Veteran requested a predetermination hearing for the proposal. As of the date of this Board decision, the requested predetermination hearing has yet to be held and no decision as to the issue of severance of service connection for polyneuropathy of the left lower extremity is of record. Thus, the Veteran's service connection for polyneuropathy of the left lower extremity remains in force. The Veteran indicated that his service-connected left big toe disability prevents him from securing or following any substantially gainful occupation. See December 2017 VA form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a) (2020). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2020). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2020). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a) (2020). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Alternatively, if a veteran is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b) (2020). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran indicated that he had high school education, but did not provide much information regarding his past employment history other than that his last part-time employment as a truck loader, which ended in January 2013. See December 2017 VA form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. As to the Veteran's employment history, a review of the Veteran's claims file reveals that he was retired from a mail carrier position at the U.S. postal service in 2000. See February 2000 Correspondence from the Veteran. The Veteran is currently service-connected for polyneuropathy of the left lower extremity associated with left great toe fracture with laceration, disabling at 20 percent from January 8, 2011 and 40 percent from February 4, 2017; and left great toe fracture with laceration, disabling at 20 percent from January 13, 2000. As such, the Veteran's current combined disability rating is 50 percent from February 4, 2017. Thus, the Veteran did not meet the schedular criteria for TDIU at any time during the entire period on appeal, because he does not have one disability ratable at 40 percent with combined disability rating of at least 70 percent. Pursuant to the Board's October 2020 remand directives, the RO referred the matter to the Director of Compensation Service for an administrative review of TDIU in accordance with 38 C.F.R. § 4.16(b). See December 2020 VA Memorandum. In January 2021, the Director of Compensation Service has determined that the preponderance of the evidence does not support a finding of extraschedular TDIU based on the Veteran's service-connected conditions alone. The Director acknowledged the Veteran's limitations caused by service-connected polyneuropathy of the left lower extremity and status post left great toe fracture/laceration; however, the Director found that those conditions alone or in conjunction do not preclude all forms of substantially gainful work activity. The Director also noted that the Veteran has additional non-service-connected physical disabilities that contribute to his current inability to obtain and maintain substantially gainful work activity. In that regard, the Board notes that the Veteran previously stated that he had retired from the mail carrier position mainly due to his pain in his left foot and knee, and asthma problems. See February 2000 Correspondence from the Veteran. The Board notes that the medical evidence of record confirms the Veteran's diagnoses of arthritis and asthma, which are not service-connected. Also, the Veteran was diagnosed with polyneuropathy of the upper extremities during a June 2019 VA examination, and the examiner provided that the condition impacts the Veteran's ability to work as he cannot use keyboard or do fine manipulation due to upper extremities numbness. The Board does not doubt that the Veteran's service-connected residuals of left great toe fracture with laceration and polyneuropathy of the left lower extremity impacts his ability to work. For example, the June 2019 VA examiner provided that the Veteran has limitations with prolonged walking or standing, climbing ladders or stairs, and balancing without support where he is limited to sedentary work. However, the evidence of record, including the Veteran's statement in February 2000 regarding the main reasons for his retirement, demonstrates that his non-service-connected disabilities, e.g., arthritis, asthma, polyneuropathy of the upper extremities, also contributes to his unemployability. Based on above, the Board agrees with the Director of Compensation Service and finds that the clinical evidence of record does not show that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Consequently, the Veteran's entitlement to TDIU, to include on an extraschedular basis is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.