Citation Nr: 21029889 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-14 451 DATE: May 17, 2021 ORDER Prior to June 21, 2016, referral to the Director, Compensation Pension (Director), for entitlement to total disability based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT Prior to June 21, 2016, the evidence does not show that the Veteran's service-connected conditions render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to June 21, 2016, the criteria for referral to the Director for entitlement to TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Board hearing was conducted via video conference with the ROs in Nashville, Tennessee, and Johnson City, Tennessee. A transcript of this hearing is contained within the electronic claims file. In a February 2021 decision, the Board denied entitlement to an initial disability rating in excess of (1) 50 percent for the Veteran's service-connected posttraumatic stress disorder (PTSD) and (2) 20 percent for a left knee disability and (3) awarded a separate 20 percent rating for the Veteran's instability of the left knee (effective June 21, 2016). The Board remanded this claim so that the agency of original jurisdiction (AOJ) could readjudicate the issue in light of the Board's award. In a February 2021 rating decision, the AOJ awarded the Veteran TDIU effective June 21, 2016 (the date he first met the schedular criteria for TDIU). Because the Veteran first filed for TDIU during the pendency of his increased rating claim for his PTSD (alleging PTSD as a reason for his unemployability), the appellate period for TDIU mirrors that of the PTSD claim. November 16, 2017, VA Form 21-8940; see Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thus, when the AOJ awarded TDIU effective June 21, 2016, it properly returned to the Board the issue of entitlement prior to that date, and the Board now will address the remainder of the issue. 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. 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, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 3435 (1994). Where the schedular rating is less than total, a total disability rating for compensation may 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 disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Because VA has failed to define them, the United states Court of Appeals for Veterans Claims has offered guidance on what it means to "secure or follow" substantially gainful employment. This phrase includes both an economic and non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component requires that a veteran's income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran's education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ibid. As noted above, the Veteran currently receives TDIU at the earliest possible date on which he meets the schedular criteriaJune 21, 2016. Prior to that date, the Veteran had a combined 60 percent disability rating made up of the following conditions: PTSD (10 percent disabling from June 10, 2013, and 50 percent disabling from February 27, 2014), tinnitus (10 percent disabling from June 10, 2013), and right ear hearing loss (noncompensable from June 10, 2013). As the Veteran does not meet the schedular requirements for TDIU prior to June 21, 2016, the only remaining questions is whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a particular case warrants referral to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b). Evaluating the record, the Board does not find that such referral is warranted. In a November 2013 VA psychiatric examination, the Veteran reported that he daily works on building a streetcar because it "helps [him] during the day. As long as [he] stay[s] busy [he is] fine." Once the Veteran is idle, however, "things start coming back" to him. In the Veteran's own words, "It seems like work helps me more than anything." (Emphasis added). The Veteran further reported that he performs all the outside and garage work. VA medical center records (VAMC) from the middlelatter half of 2015 discuss the Veteran's symptoms as depressed mood, anxiety, sleep problems, nightmares, avoidance, and anergia. In October 2015, the Veteran denied the opportunity for sleep therapy because he and his wife soon were traveling to Florida for a few weeks. An entry from March 2016 confirms that the Veteran enjoys performing work around the house and watching television. The Board does not find that, prior to June 21, 2016, the Veteran's service-connected conditions render him unable to secure or follow a substantially gainful occupation. To the contrary, the Veteran himself indicated at the November 2013 psychiatric examination that the opposite is true: that work keeps his psychiatric symptoms at bay. When the Veteran preoccupies himself with yardwork, housework, or working on his car, he has less time to think about his past military experiences, thereby reducing the overall effect of his PTSD. The Veteran stated that he enjoys working because it provides relief and a welcome distraction. True enough, the record discloses that the Veteran still experiences symptoms of his PTSD (recounted above), but there is no evidence that they prevent him from securing or following a substantially gainful occupation. There also is no evidence that the Veteran's tinnitus or non-disabling hearing loss precludes such activity. Therefore, the Board finds that, prior to June 21, 2016, the evidence of record does not disclose that the Veteran's service-connected conditions render him unable to secure or follow a substantially gainful occupation, so it will not refer to the Director the issue of entitlement to TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.