Citation Nr: 21027720 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-07 026 DATE: May 6, 2021 ORDER Entitlement to a total disability rating due to unemployability (TDIU) is denied. FINDING OF FACT The evidence is insufficient to establish that the Veteran is unemployable as a result of his service-connected disabilities alone, and therefore extraschedular consideration is not warranted. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from July 1975 to July 1978, from August 1987 to August 1992 and from February 2003 to May 2004. 1. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(a). A finding of total disability is appropriate "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(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a veteran meets the schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. Id. The law provides that a veteran's advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places her in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. Finally, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider "the effect of combinations of disability" under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The Veteran is service connected for residuals, surgery left achilles tendon and degenerative osteoarthritis at 20 percent, hypertension at 10 percent, as well as rhinitis, erectile dysfunction, and a surgical scar at noncompensable rates. As such, his combined rating is 30 percent and he does not meet the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. Referring a TDIU under 38 CFR 4.16(b) is a factual funding based upon a lower evidentiary standard than for a grant of extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58 (2019). Upon review, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. Importantly, only service-connected disabilities may be taken into consideration when determining unemployability. See 38 C.F.R. § 4.16. The Veteran indicated that he was no longer employed as a correctional officer due to his service connected disabilities. Treatment records show the Veteran experienced chronic, bilateral foot pain and a torn left calf muscle in May 2018. Following the calf injury, he was given a note for extended leave from work. He had difficulty at work due to being on his feet for long periods. Although he is service connected for residuals of surgery for left achilles tendon, he has not been service connected for any foot or calf disability/injury. There is no evidence showing his left achilles tendon alone causes difficulty standing or walking while at work. None of the VA examiners of record concluded the Veteran's disabilities caused any functional impairment that would prevent him from or make it difficult to work. His assigned ratings reflect this finding. Even considering the lay testimony of record, the Board finds that the most probative evidence of record does not show that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. Therefore, referral for consideration of TDIU on an extraschedular basis is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, 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.