Citation Nr: 21030686 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-13 312 DATE: May 19, 2021 ORDER Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to January 24, 2014 is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's service-connected disabilities were so severe that they precluded the Veteran from securing or following a substantially gainful occupation prior to January 24, 2014. CONCLUSION OF LAW The criteria for a TDIU prior to January 24, 2014 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from the October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2015 Form 9, Substantive Appeal, the Veteran elected not to have an optional Board hearing. This case has a long procedural history. Most recently, this case was previously before the Board in December 2020 for further development. The development requested having been completed, the case is now appropriate for appellate review. Entitlement to a TDIU prior to January 24, 2014 Currently, the Veteran is in receipt of TDIU from January 14, 2014. The Veteran seeks a TDIU prior to January 24, 2014. He contends his service-connected disabilities render him unemployable. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following service-connected disabilities prior to January 24, 2014: coronary artery disease status post bypass surgery (CAD) rated at 10 percent from July 2011, and 30 percent from August 2013; diabetes mellitus type II (DM) rated at 20 percent from February 2001; tinnitus rated at 10 percent from July 2012; and bilateral hearing loss rated as noncompensable from July 2012. The Veteran's combined service-connected disability rating is 50 percent from August 20, 2013 to January 24, 2014, and 40 percent from July 6, 2012 to August 19, 2013. At no time prior to January 24, 2014 were any of the Veteran's service-connected disabilities assigned a rating of 40 percent. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities prior to January 24, 2014. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to January 24, 2014, and therefore referral of the claim is not warranted. Here, the Veteran's application for TDIU (VA Form 21-8940) was received in January 2014. The Veteran indicated that he completed two years of high school and works part-time. His occupations include school bus driver and trash truck driver. He claimed his CAD and DM render him unemployable. In August 2013, a VA examiner opined that the Veteran's CAD did not have a functional impact on his work as the Veteran continues to drive a school bus. In an October 2014 VA opinion regarding unemployability based on CAD and DM, the examiner opined that the Veteran is "working now as a school bus driver, a mechanic, and a welder (which he enjoys) and is perfectly capable of continuing these lines of work. He has no physical disability preventing from performing these functions." The examiner explained that while the Veteran's DM does impact the Veteran's ability to work, if he has to go on insulin, he will not be able to drive a school bus any longer. However, the Veteran is a mechanic and welder as well and is able to continue those employment activities. Thus, the most probative medical evidence establishes that the Veteran is able to secure and follow substantially gainful occupation. In light of the foregoing, the Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU prior to January 24, 2014. The preponderance of evidence tends to show that the Veteran's service-connected disabilities were not of such severity to render him unable to secure and follow substantial gainfully occupation, consistent with his occupational history and educational attainment prior to January 14, 2014. Rather, the evidence establishes that the Veteran can perform work such as a mechanic or welder. Accordingly, extraschedular referral is not warranted and entitlement to a TDIU prior to January 24, 2014 is denied. The Board acknowledges the Veteran's honorable service to our country and is sympathetic to the Veteran's circumstances; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached in this appeal. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Agarwal, 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.