Citation Nr: 21032254 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-18 757 DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran does not meet the schedular requirements for a TDIU, and referral for extraschedular consideration is not warranted as the Veteran's service-connected disabilities, when evaluated in association with his educational and occupational experience, have not rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability based upon individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1972 to June 1975 and from June 1975 to January 1981. The Veteran's discharge for the second period of service was under dishonorable conditions. Pursuant to a September 2012 VA administrative decision, the Veteran is only eligible for VA benefits based on the first period of service between June 1972 and June 1975. This matter was previously before the Board in July 2018 and October 2020. In July 2018, the issue was remanded as it was found inextricably intertwined with service connection claims and adjudication was deferred. In October 2020, the TDIU claim was remanded, pending the disability evaluations for hearing loss and tinnitus. A Supplemental Statement of the Case was issued in March 2021. Entitlement to a TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The question in a TDIU claim is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a TDIU due solely to the service-connected conditions. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Faust v. West, 13 Vet. App. 342 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. Therefore, if a veteran fails to meet the schedular requirements for a TDIU, an extraschedular rating may nevertheless be considered where a veteran is unemployable due to service-connected disabilities. However, the Board cannot assign an extraschedular evaluation in the first instance. Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Here, the Veteran is currently service connected for posttraumatic stress disorder at 50 percent, tinnitus at 10 percent, and hearing loss at 0 percent. He has a combined rating of 60 percent. Because there is more than one service-connected disability, there must be at least one disability ratable at 40 percent or more, and a sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran has one service-connected disability ratable at 40 percent or more, but he does not have a combined rating of 70 percent or more. As such, he does not meet the schedular requirements for TDIU. Although the Veteran does not meet the schedular requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether his service-connected disabilities preclude him from engaging in substantially gainful employment on an extraschedular basis. See 38 C.F.R. § 4.16(b). In this case, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 4.16(b) is in order. As discussed more fully below, the most probative and credible evidence in this case fails to show that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment any time during the appeal period. Id. The Board finds that referral for consideration of a total rating based on unemployability due to the Veteran's service-connected disabilities is not warranted. In January 2016 and March 2016, the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In his January 2016 application, he noted his PTSD, mood swings, anxiety attacks, bilateral tinnitus, low back injury, and arthritis of the upper and lower extremities prevent him from obtaining gainful occupation. He noted January 1980 as the date his disabilities affected his full-time employment and January 2005 was the date he last worked. In his March 2016 application, he noted his PTSD, mood swings and anxiety affect his ability to secure gainful occupation. He noted his disabilities affected full time employment in January 2003 and he last worked full time in January 2003 in construction. He had not attempted to obtain employment since he contended he had become too disabled to work. Regarding education, both the January 2016 and March 2016 applications noted he had completed four years of high school. In an October 2015 mental health note, the Veteran reported his last job was a superintendent over a construction company. He noted he was not currently employed and was not seeking to return to competitive employment at this time. He reported not having a valid driver's license, and noted he rarely leaves the house. A mental health note from January 2016 reported the Veteran was currently unemployed and not seeking to return to competitive construction. The Veteran stated he received money from his VA pension and his wife worked to provide additional income. Veteran stated he does not have a valid driver's license and he rarely leaves the house unless it is "absolutely necessary." In September 2018, the Veteran was provided a Hearing Loss and Tinnitus Disability Benefits Questionnaire. The examiner noted the Veteran's hearing loss would impact ordinary conditions of daily life, including the ability to work in that he would have trouble hearing and understanding speech without amplification. Regarding his tinnitus, the Veteran reported that his tinnitus interfered with his concentration and wakes him up at night. In July 2020, the Veteran was provided an Initial PTSD examination. His occupational history included reports of working in construction from the time he left the military until 1997. He reported he had mood issues, and seemed to do better doing construction jobs. He stated he made foreman on a "couple of jobs." He reported that he began to have problems with his ankle and nightmares, and started going to the VA in the late-1990s. No additional work history was provided, and the Veteran reported no additional education following service. He reported issues with anxiety, depression, difficulty falling and staying asleep, nightmares about military experiences, social isolation, and passive suicidal ideation. For rating purposes, the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner opined that his PTSD would cause occupational and social impairment with reduced reliability and productivity. In support of his claim, the Veteran's spouse submitted statements in April 2016 and July 2020. In her April 2016 correspondence, she noted that the Veteran has not been able to keep a job for more than six months at a time. With the inability to hold a job, she has to work 2 jobs to support the family. She noted the Veteran experiences daily panic attacks, and he does not want to attend any family functions or go anywhere where there are large crowds. In her July 2020 correspondence, she reported that when she met the Veteran in 1982, he was very social and talkative. But less than a year into their relationship, he could not keep a job. He did not want to follow orders from anyone on the job or be around any family or friends. She noted for the past 8-10 years, the Veteran has been "almost a hermit," and cannot keep a relationship with anyone. At a March 2021 Hearing Loss and Tinnitus VA examination, the examiner noted that the Veteran's hearing loss and tinnitus typically interferes with word understanding with any type of competing noise. The Veteran may have difficulty hearing spoken guidance, instructions, or comments from others when in noise. He may also have difficulty understanding telephone communication since he could not read lips and facial expressions during a phone exchange. Once he understands the topic at hand, the hearing loss and tinnitus should not interfere with completion of physical or sedentary work. Regarding his tinnitus, the examiner opined that it would not impact ordinary conditions of daily life, including the ability to work. Social Security Administration documentation notes the Veteran reported pain in his legs and feet that make it hard for him to sleep. He reported he walks no further than maybe to the mailbox and had issues with balancing himself. He reported experiencing nightmares regarding things he went through in the military and noted his nerves were getting worse. He reported since he broke his heel and ankle that it is very hard for him to get around without pain over 80 percent of his body. He noted he stopped working in March 2007, after falling off a ladder. A separate SSA record show he reported working in construction from 1981 until 2006. At no point during the appeal period has the Veteran described any symptoms related to his service-connected disabilities that would render him unemployable. The Board does not dispute that his PTSD likely would impact his ability to work to the extent he prefers to be alone and experiences anxiety. However, his work history shows that he worked in mostly physical labor, which would allow him to work independently. In addition, a high disability rating itself is recognition that the impairment makes it difficult to obtain and keep employment. The question of TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. From the record, the service-connected disabilities were not the sole reason for the Veteran's unemployability. The Board recognizes that the Veteran does also have many physical ailments, such as arthritis, back pain, and chronic ankle pain that would likely impact his ability to work. This is bolstered by his SSA records. However, he is not service-connected for any of these disorders, and as a result, the Board may not consider them in deciding whether referral is warranted for extraschedular TDIU. When considering all the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for TDIU. The probative evidence does not show that he is not capable of performing the physical and/or mental acts required for substantially gainful employment due to his service-connected disabilities. As such, referral for consideration of a TDIU on an extraschedular basis is not warranted and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.