Citation Nr: 22017572 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-17 795 DATE: March 25, 2022 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from engaging in gainful employment consistent with his education and experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.321, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from July 1974 to July 1977 and from November 1981 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2018. The matter was then remanded for additional development in February 2019, March 2020, and January 2021. TDIU 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). The following disabilities have been service-connected for the entire appeal period: left clavicle resection (20 percent), left knee abrasion (0 percent), and left clavicle scar (0 percent). From April 13, 2016, the Veteran is also service-connected for: right AC joint separation post-surgery (20 percent), tinnitus (10 percent), right knee strain (0 percent) and right shoulder scar (0 percent). His combined rating is 20 percent prior to April 13, 2016, and 50 percent thereafter. 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 January 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 January 2022. 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. Evidence of the Veteran's education and occupational background includes his April 2010 and April 2021 TDIU application forms, his Social Security Administration (SSA) records, lay statements, and information provided by one of his former employers. Collectively, the evidence shows that the Veteran previously worked as a mechanic, tow truck driver, locksmith, delivery driver, bus/transport driver, and car washer. Information regarding his education is conflicting. In his April 2010 TDIU application, he reported having one year of college education, as well as training in welding. In his April 2021 application, he reported only two years of high school education, plus six months of training in mobile electronics. Regarding functional impairment, there is no indication of any limitations resulting from the Veteran's knee strain, knee abrasion, tinnitus, or scars. Rather, the only identified impairment is from his bilateral shoulder disabilities. An August 2010 VA examiner stated that the left clavicle disability precluded employment in any activity which required persistent and chronic overhead activity or lifting more than 25 pounds. An additional VA opinion from November 2010 stated that the Veteran was unsuitable for employment where there is a requirement for lifting, pushing, or pulling left shoulder weights greater than 20 pounds. A September 2014 VA examiner noted the left shoulder disability had moderate effects on the Veteran' usual occupation. A May 2016 VA examination stated that the right shoulder disability impacted occupational functioning but did not provide any further details. Notwithstanding the above limitations, the Board finds that a TDIU is not warranted. The Veteran has prior experience as a bus, van or transport driver. VA treatment records from May 2010 show that the Veteran was driving a new truck, and the August 2010 VA examiner stated that the Veteran was able to drive. VA treatment records from July 2016 also show the Veteran was able to drive but reported that driving increased the pain in his neck. Because he is not service-connected for a neck disability, that impairment cannot be considered when determining his functional capacity. In sum, the Veteran can drive despite the impairments associated with his service- connected disabilities and is therefore able to perform gainful employment consistent with his prior work experience. As a result, 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.