Citation Nr: 22017753 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 09-29 654 DATE: March 26, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) to include on an extraschedular basis, is denied. FINDINGS OF FACT The Veteran does not meet the schedular requirements for TDIU. The Veteran's combined service-connected disability picture is not shown to have prevented him from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria have not been met for a TDIU rating on either a schedular or extraschedular basis. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from February 1987 to July 1987, February 1991 to March 1991, September 2001 to August 2002, and September 2003 to March 2007. He also had service in the Army National Guard, to include a period of active duty for training from March 1984 to April 1984, and he had additional service in the United States Coast Guard Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously before the Board in September 2020 when it was remanded for further development. The claim has since been returned to the Board for further appellate review. The Board finds there has been substantial compliance with the September 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issue was remanded to the Director of Compensation Service for extraschedular consideration. There is a March 2021 memorandum from the Director of Compensation Service. Accordingly, the Board will proceed with appellate review. 1. Entitlement to a TDIU Applicable Law VA will grant TDIU when the evidence shows that a veteran is unable, by reason of service-connected disabilities, to secure or follow any form of substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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. C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Discussion In his May 2019 TDIU application (VA Form 21-8940), the Veteran wrote that he last worked full-time and became too disabled to work in October 2015, and March 2007 is when his disabilities first affected full-time employment. He identified all service-connected disabilities as preventing him from securing or following any substantial gainful employment. He wrote that he last worked as an Owner/Operator of a trucking company, which included working as a truck driver. The Veteran left his job because his vision condition resulted in too many mistakes and his was unable to keep his commercial driver's license (CDL) due to the required vision test, plus now he has heart problems and vision headaches. He had four years of college education and earned a Bachelor of Science in Criminal Justice. Additionally, he has training as an engineering technician, health and safety technician, over-the-road truck driver, and a draftsman. He maintained that the combination of all his service-connected disabilities prevent him from securing or following any substantial gainful employment. First, the Veteran is service connected for (1) tension headaches (also claimed as headaches with dizziness) evaluated at 30 percent; (2) carpal tunnel syndrome, right upper extremity evaluated at 10 percent; (3) carpal tunnel syndrome, left upper extremity evaluated at 10 percent; (4) eye disorder, to include presbyopia and irregular astigmatism with residual monocular diplopia evaluated at 0 percent, and (4) hypertension evaluated at 0 percent. The Veteran's combined disability evaluation was 50 percent from March 29, 2007. Thus, the percentage requirements for a TDIU were not met. 38 C.F.R. § 4.16(a). Second, the Board finds the evidence does not show the Veteran was unable to follow or maintain a substantially gainful occupation. Social Security Administration (SSA) disability records from October 2009 document the Veteran has the residual functional capacity to perform light work expect that he is unable to meet the mental requirement of work activity or adjust to work stressors and is therefore precluded from performing full time work. Moreover, the SSA records document the Veteran has not engaged in substantial gainful employment since March 29, 2007. Further, noted in the report is that the Veteran worked after the established disability onset date, but this work activity did not rise to the level of substantial gainful activity. The SSA's legal criteria for assessing disability for purposes of receiving benefits from this other Federal agency differs from VA's framework for determining entitlement to a TDIU, but SSA determinations concerning this nonetheless are relevant, even though not ultimately binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). See also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim). The Veteran received a June 2019 VA examination for hypertension. The examiner noted that the hypertension did not impact his ability to work. Also, the examiner found that the Veteran can perform light work. The examination report notes light work is defined as "exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible." The June 2019 VA examination report for headaches and his peripheral nerve conditions document the examiner noted that the Veteran is capable of sedentary work. The examination report notes that sedentary work is defined as "exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met." The June 2019 VA optometry examination report documents the examiner noted "no restrictions for job activities required." Regarding his history, education, skills, and training, the Veteran reported four years of college education and a Bachelor of Science in Criminal Justice, plus employment as an engineer with various training associated with engineering and truck driving. Overall, the Board finds the evidence shows the Veteran has a broad and extensive background with transferrable skills. Thus, the Veteran's service-connected disabilities alone do not preclude gainful employment. The Board has also considered the lay evidence of record. In his May 2019 TDIU application, the Veteran reported it has been difficult to work; therefore, he created his own trucking company. Further he reported that he was unable to keep the required CDL license due to vision difficulty therefore he ended his trucking business. At the June 2019 VA headache and peripheral neuropathy examinations, the Veteran reported 1 to 2 weeks of time lost at work in the last 12 months due to his conditions. Further, he reported cannot hold objects very long with either hand and drops objects due to his bilateral carpal tunnel syndrome. This disability picture would certainly impair his ability to maintain employment in his last position as a truck driver to the extent it requires him passing a vision test to obtain a CDL. However, the evidence does not indicate that he would be precluded from all forms of substantially gainful occupation consistent with his background. Most notably, he has a college degree and additional training as an engineering technician with KDOT, a safety technician in environmental engineering, and a draftsman. Also, he has additional training and experience in national security. As such, the most persuasive evidence is against the claim, including on an extraschedular basis. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.