Citation Nr: 21030731 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-34 437 DATE: May 19, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), prior to September 8, 2014, is denied. FINDING OF FACT Prior to September 8, 2014, the evidence shows that the Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU, prior to September 8, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2017 regarding a claim for a higher rating for a service-connected ischemic heart disease (IHD) disability. The Board notes that a claim for TDIU is part of an increased rating claim when such is raised explicitly by the Veteran or implicitly by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2018, September 2019 and February 2021, the Board remanded the case. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, 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. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Prior to September 8, 2014, the Veteran was service connected for: IHD, rated as 10 percent disabling and diabetes mellitus, rated as 10 percent disabling, prior to May 15, 2013 and as 20 percent disabling thereafter. His combined evaluation for compensation purposes was 20 percent disabling, prior to May 15, 2013, and as 30 percent disabling thereafter. Thus, the Veteran does not meet the threshold schedular requirement for consideration for an award of TDIU benefits under 38 C.F.R. § 4.16(a). The Board notes that the United States Court of Appeals for Veterans Claims has held that the Board has no power to award TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service, for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). A review of the record reflects that the July 2012 VA heart examination report shows that the VA examiner indicated that the Veteran's condition impacted his ability to work. It was noted that the Veteran experienced angina with walking for more than 30 minutes or lifting more than 50 pounds. The Veteran needed to get help at the warehouse if he had to do lifting greater than 50 pounds. It was also noted that the Veteran felt very tired after working 6.5 hour days at work and that he had worked full time until a few months before his heart attack in 2010 due to weakness and fatigue at the time. A VA medical record dated in May 2013 shows that the Veteran started using medication, Metformin, for his service-connected diabetes mellitus condition. Pursuant to a February 2021 Board decision and remand, a response to a referral was received in March 2021 regarding extraschedular consideration for the TDIU claim for the period prior to September 8, 2014. The Director of Compensation Services noted that the Veteran reported last working as a warehouse supervisor. It was noted that a July 2012 heart conditions examination report showed a metabolic equivalent level of 11 based on diagnostic exercise testing and the testing indicated normal physical ability. The Veteran reported in the examination that he was employed, but no longer employed full time. He reported needing help lifting more than 50 pounds and felt fatigue working more than six hours. His VA medical center records also reported non-service-related conditions that impaired work functioning. It was noted that the evidence prior to September 2014 did not indicate an unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. The cumulative evidence did not support a finding that the service-connected conditions, alone or in conjunction, would have precluded substantially gainful employment. The Director of Compensation Service determined that the overall evidence failed to support the contention that the service-connected disabilities or a combination of the effects of those disabilities prevented employment. Entitlement to extraschedular TDIU benefits was not established. After a review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities did not preclude his performance of substantially gainful employment, prior to September 8, 2014. In this case, the Director of Compensation determined that service-connected disabilities did not render him unemployable during that timeframe. That decision was made in accordance with 38 C.F.R. § 4.16(b). Moreover, there is no medical opinion supporting the Veteran's argument that his service-connected disabilities, alone, precluded substantially gainful employment during that timeframe. As such, TDIU is not warranted on an extraschedular basis. The Board is sympathetic to the Veteran's contention that his service-connected disabilities had an impact on his ability to secure or follow a substantially gainful occupation for this period of time. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question in a claim for a TDIU rating is whether he is rendered incapable of engaging in employment consistent with his education and experience, due to his service-connected disabilities. In this case, the evidence of record reflects that his service-connected disabilities, to include his IHD disability, did not preclude him from engaging in gainful employment during the time period in question. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A-L Evans, 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.