Citation Nr: 21027465 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-13 648 DATE: May 5, 2021 ORDER Entitlement to a total disability evaluation based on unemployability due to service-connected disabilities (TDIU) prior to October 3, 2014, is denied. FINDING OF FACT Prior to October 3, 2014, the Veteran did not meet the schedular requirements for TDIU and his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to October 3, 2014, the criteria for TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Marine Corps from May 1994 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded in October 2018 and July 2020. It has since been returned to the Board for appellate review. The Board notes the appeal originally including a service connection claim for an acquired psychiatric disorder, claimed as bipolar disorder. In an April 2021 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) with major depression and panic disorder with a 70 percent evaluation, effective October 3, 2014. The RO also granted the Veteran's TDIU claim, effective October 3, 2014. This does not constitute a full grant of benefits sought on appeal. Therefore, the issue of entitlement to TDIU prior to October 3, 2014 remains on appeal and a supplemental statement of the case was issued which addressed entitlement to TDIU prior to October 3, 2014. The Veteran and his representative have not raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following are evaluated as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but 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, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to TDIU prior to October 3, 2014. The Veteran has already been granted TDIU effective from October 3, 2014. Prior to that date, he was service-connected for right knee degenerative arthritis (10 percent), right knee lateral instability (10 percent), and tinea versicolor (noncompensable evaluation). His combined evaluation was 20 percent prior to October 3, 2014. Therefore, prior to October 3, 2014, the Veteran did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). The Board is precluded from assigning TDIU on an extraschedular basis in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). Initially, it appears the Veteran was last employed in May 2008. The Veteran filed a claim for entitlement to TDIU in October 2014. He indicated that the last time he was employed was in May 2008 and that he was unable to secure and maintain gainful employment because of his psychiatric disorder. A July 2008 Social Security Administration Determination shows the Veteran was rendered disabled because of epilepsy (major motor seizures), a non-service connected disability. In December 2014, a VA examiner first indicated the Veteran's right knee disorder moderately impaired his ability to do sedentary work and severely impacted his ability to do physical work. A July 2015 record shows the Veteran is a high school graduate and has taken some college courses. In a March 2021 PTSD VA examination, the Veteran reported that he tried to go back to school but it was too difficult. A January 2016 VA examiner noted the Veteran indicated he stopped working at a warehouse a few years prior because of his knee pain and stability. The Veteran reported that sedentary work would be okay so long as he did not sit too long without stretching or standing for a minute. The examiner did not offer an opinion regarding the impact of his disability on employment. A March 2016 traumatic brain injury VA examination notes the Veteran worked in warehouses loading and unloading trucks from November 1997 to May 2008. See also September 2014 VA treatment record. The Board acknowledges that prior to October 3, 2014, the Veteran was limited with regard to certain occupations because of his service-connected right knee degenerative arthritis and right knee lateral instability. However, these limitations did not prevent the Veteran from securing and maintaining all form of gainful employment. The Board notes that some VA examiners have stated that the Veteran would have difficulty and need modifications due to his right knee disorders. However, prior to October 3, 2014, the evidence of record shows that the Veteran's unemployment was due to his non-service connected seizure disorder. Significantly, the evidence of record does not suggest that the Veteran was precluded from all forms of work due to his right knee disorders or his tinea versicolor. It wasn't until a December 2014 examination that the evidence strongly suggested that his service connected right knee disorders impacted his ability to obtain or retain substantially gainful employment. Moreover, the Veteran indicated he could not work because of his psychiatric disorder in his October 2014 claim for TDIU. Indeed, the Board notes that the Veteran has been granted service connection for PTSD with major depression and panic disorder and TDIU, both effective October 3, 2014 (the date of his psychiatric disorder claim). After careful review of the evidence, the Board concludes that this case does not present any unusual or exceptional circumstances that would warrant a referral to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b), prior to October 3, 2014. The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. On review of the record, the Board finds that the disability evaluations assigned for the Veteran's service-connected disabilities under the VA Schedule for Rating Disabilities accurately reflect the Veteran's overall impairment to his earning capacity for those disabilities prior to October 3, 2014. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.