Citation Nr: 21032453 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 11-05 644A DATE: May 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to December 3, 2008 is denied. FINDING OF FACT Prior to December 3, 2008, the Veteran's service-connected disabilities did not preclude him from obtaining or maintaining gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to December 3, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision. The Board previously adjudicated additional claims brought by the Veteran. As part of that adjudication, the Board found in February 2021 that the Veteran was already in receipt of a TDIU as of December 3, 2008, but the question of whether he is entitled to a TDIU from March 26, 2008 to December 2, 2008 remained on appeal. A TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). During the period in question, the Veteran was service-connected for renal insufficiency with hypertension, posttraumatic stress disorder (PTSD) and diabetes mellitus. His highest rated disability was PTSD at 50 percent, and his combined rating was 60 percent. Therefore, he does not meet the schedular criteria for a TDIU. Nevertheless, where the combined rating percentage requirements are not met, entitlement to a TDIU may be nonetheless considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In February 2021, the Board requested that the Director of Compensation Service provide an opinion as to whether a TDIU was warranted on an extraschedular basis. The Director provided a negative opinion in March 2021. The question now returns to the Board for review. The central inquiry is determining whether a TDIU is warranted is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. In a March 2009 TDIU application form, the Veteran indicated that he had a high school education and had worked as a station manager for the Washington Metro Area Transit Authority from 1971 through March 2006. In separate treatment records and examination reports, he stated that he worked as a train operator. Regarding functional impairment, VA treatment records from May 2008 show the Veteran achieved a score of 10 metabolic equivalents (METs) on an exercise stress test. A comparison between this score and the general criteria found in 38 C.F.R. § 4.104 shows that he was essentially capable of exerting himself normally, notwithstanding his diabetes, renal dysfunction, and hypertension. VA records from September 2010, outside of the appeal period, also show the Veteran tolerated exercise well and had worked in his yard over the weekend. A July 2008 VA examination noted that PTSD moderately affected non-occupational areas such as activities of daily living, relationships, and overall quality of life. However, based on a history from the Veteran and a mental health examination, the examiner specifically noted that the Veteran was not unemployable due to his PTSD. In sum, the evidence shows that, during the period on appeal, the Veteran could perform the mental and physical acts of his prior employment as a station manager or train operator. Therefore, an extraschedular TDIU is not warranted. The Board recognizes the functional limitations resulting from the Veteran's service-connected disabilities. However, assignment of a TDIU evaluation requires some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran's overall occupational and functional impairment is adequately contemplated by his assigned schedular ratings. The percentage ratings assigned represent the average impairment in earning capacity in civil occupations, and the 60 percent rating in effect during the period in question contemplates a significant amount of impairment. However, the evidence is against a finding that his service-connected conditions, alone, precluded him from obtaining substantially gainful employment during the period from March 26, 2008 to December 2, 2008. Therefore, a TDIU is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.