Citation Nr: 21042548
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 16-60 760
DATE: July 13, 2021

ORDER

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 16, 2009, is denied.

FINDING OF FACT

Prior to January 16, 2009, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history.

CONCLUSION OF LAW

The criteria for a TDIU prior to January 16, 2009, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1975 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. In July 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 

In April 2020, the Board remanded the claim for a TDIU prior to July 11, 2019, for additional development and, in February 2021, awarded a TDIU as of January 15, 2014. However, as he did not meet the schedular criteria for a TDIU prior to such date, the Board remanded such aspect of his claim for additional development. In a May 2021 rating decision, a TDIU on an extra-schedular basis awarded as of January 16, 2009, the date after he last worked full-time. The case now returns for further appellate review.

Entitlement to a TDIU prior to January 16, 2009.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b).

As noted in the April 2020 and February 2021 Board decisions, the appeal period stems from September 5, 2013, the date service connection was awarded for the Veteran's scars of his left lower extremity. Nonetheless, in the May 2021 rating decision, a TDIU was granted as of January 16, 2009, the day after he reported that he last worked full-time. 

In this regard, prior to January 16, 2009, the record reflects that the Veteran was employed in a substantially gainful occupation and, thus, prior to such date, his service-connected disabilities, which consisted solely of degenerative joint and disc disease of the lumbosacral spine and post-operative residuals of the fracture of the left tibia and fibula, did not render him unable to secure and follow a substantially gainful occupation consistent with his education and work history. Specifically, while the Veteran variously reported that he last worked in February 2008 and February 2009 in his June 2011 and June 2012 Veteran's Application for Increased Compensation based on Unemployability (VA Form 21-8940), respectively, he clarified that he last worked on a full-time basis on January 15, 2009, in his July 2019 VA Form 21-8940. Specifically, at such time, he reported working 40 hours a week as an electrician until January 15, 2009, lost only one week from work due to illness, and his gross earnings were $5,000.00 per month. Consequently, as the Veteran was employed in a substantially gainful occupation prior to January 16, 2009, a TDIU is not warranted prior to such date. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. M. Kelly, 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.