Citation Nr: 21031634 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-26 745 DATE: May 24, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities prior to August 31, 2015 on an extraschedular basis is denied. FINDING OF FACT Prior to August 31, 2015, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU, and the evidence does not indicate that his service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW Prior to August 31, 2015, the criteria for a TDIU are not met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded by the Board in September 2020 for additional development. Entitlement to a TDIU, prior to August 31, 2015, on an extraschedular basis is denied. 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 disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran's "education, employment history and vocational attainment." See 38 C.F.R. § 4.16(b). A TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. To qualify for a total rating for compensation purposes, the evidence must show that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran has not met the above criteria at any point during the period on appeal prior to August 31, 2015. He is rated at a 100 percent schedular rating since August 31, 2015. However, veterans who are unable to secure gainful employment by reason of service-connected disabilities but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extra-schedular consideration under 38 C.F.R. § 4.16(b). Significantly, the Board has no power to award a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance without referring the claim to VA's Director of Compensation Service (Director) for such consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). In this case, the Director determined in December 2020 that the Veteran's service-connected disabilities did not warrant a TDIU prior to August 31, 2015. See December 2020 Memorandum. Prior to August 31, 2015, the Veteran was rated at 10 percent for right wrist arthritis, 10 percent for left wrist arthralgia, 10 percent for right hand and finger arthritis, 0 percent for left hand and finger arthritis, and 30 percent for interstitial lung disease from January 28, 2008. His combined evaluation was 50 percent, it was reduced to 30 percent from July 27, 2009 due to the evaluation for interstitial lung disease being reduced to zero percent. From February 13, 2014, the Veteran has a combined evaluation of 40 percent due to the grant of service connection for adjustment disorder evaluated at 10 percent. From August 31, 2015, he has a 100 percent evaluation bladder carcinoma. Therefore, prior to August 31, 2015, the Veteran did not meet the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a). As noted above, the Board referred the Veteran's claim for entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service under 38 C.F.R. § 4.16(b) and requested consideration of extra-schedular entitlement to a TDIU prior to August 31, 2015 in accordance with 38 C.F.R. § 4.16(b). In December 2020, the Executive Director of Compensation Service provided an advisory opinion for extraschedular consideration. After giving consideration to all relevant evidence, including but not limited to the Veteran's education, training, and work history, the Director of Compensation Service determined that the overall evidence failed to support the contention that any of the Veteran's service connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to August 31, 2015. The Board notes the Veteran was determined to be disabled under Social Security Administration (SSA) rules due to his service-connected Wegener's granulomatosis and depression effective April 29, 2005. The decision from SSA indicates the Veteran has a high school education and had occupational experience primarily as a police officer. The determination from SSA indicated the Veteran had a residual functional capacity that would allow for work that was performed generally while in a seated position that did not require lifting in excess of 10 pounds. See November 2006 Decision. For the period prior to February 13, 2014, the Veteran was only service connected for granulomatosis related arthritic changes and the SSA determination indicated that he would be capable of occupations with the limitations described above. Additionally, the Veteran's adjustment disorder was granted February 13, 2014 and assigned a 10 percent evaluation, indicating occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The Board notes the Veteran was examined in August 2014 and his adjustment disorder was found to produce symptoms that are not severe enough either to interfere with occupational and social functioning or to require continuous medication. See August 2014 Examination. The Board also notes that the Social Security Administration allowance of unemployability benefits considered the Veteran's depression prior to the allowance of service connection for the acquired psychiatric adjustment disorder. Non-service-connected disabilities may not be considered by the Board in determining entitlement to a TDIU. The SSA records showing some residual functional capacity for work, the evidence cited above indicating little to no limitation from psychiatric disability, and the evidence showing limitations from respiratory and granulomatosis disabilities impacting strenuous labor do not indicate the Veteran was precluded from all substantial gainful employment. The SSA determination found him capable of work generally performed in a seated position with limitation of moving over ten pounds. This determination is consistent with the evidence cited by the Director and is consistent with the examinations of record. The Board finds that the weight of the evidence does not support a finding that the Veteran was unable to secure or follow substantially gainful employment prior to August 31, 2015. Nor does the evidence show that the Veteran's disability presented unique challenges that could not be contemplated. Therefore, entitlement to TDIU on an extra-schedular basis is denied. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.