Citation Nr: 25003907 Decision Date: 03/21/25 Archive Date: 03/21/25 DOCKET NO. 18-32 491 DATE: March 21, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 29, 2015, is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to May 29, 2015. CONCLUSION OF LAW The criteria for TDIU prior to May 29, 2015 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1969. A March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran TDIU from May 29, 2015. In an October 2022 decision, the Board of Veterans' Appeals (Board) determined that the issue of entitlement to TDIU prior to May 29, 2015 was before the Board due to pending increased rating claims and remanded the TDIU issue. In October 2024 the Board again remanded the TDIU issue. The Board remanded the TDIU claim in order for the RO to assign a rating and effective date for newly service-connected bilateral hearing loss and then readjudicate the claim for a TDIU prior to May 29, 2015. The RO complied and then denied the Veteran's TDIU claim in a December 2024 supplemental statement of the case. Accordingly, the TDIU claim is now ready for Board review. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Prior to May 29, 2015, the Veteran did not meet the schedular requirements for TDIU. Prior to that date his total combined rating was 40 percent. He had a 40 percent rating for left ankle ankylosis, and noncompensable ratings for left ankle scar, left hand deformity, and residuals of non-Hodgkin's lymphoma. The Board finds that for the period prior to May 29, 2015, referral is not warranted for extraschedular TDIU consideration as the evidence does not demonstrate that the Veteran's service-connected disabilities precluded following a substantially gainful occupation prior to that date. On a December 2015 VA Form 21-8940 the Veteran asserted that he was unemployable due to PTSD. The Board notes that service connection for PTSD was not in effect prior to May 29, 2015, and thus PTSD may not be considered with regard to eligibility for TDIU prior to that date. Furthermore, the Board notes that on this form the Veteran did not assert that any of his disabilities for which service connection was in effect prior to May 29, 2015 interfered with his employability. He reported that his education included one year of college. He also reported that he had been a warehouse-inventory manager and that he had worked in real estate. At his May 2022 hearing the Veteran reported that his service-connected left ankle disability interfered with his prior employment and that his employer bought a go-cart for the Veteran to use to travel around the warehouse. The medical evidence prior to May 29, 2015, indicates that the Veteran was not unemployable solely due to his service-connected left ankle ankylosis, left ankle scar, left hand deformity, and non-Hodgkin's lymphoma disabilities. A March 2015 VA examination report noted that the Veteran's lymphoma disability had no impact on his ability to work. Although the Veteran asserted to a March 2015 orthopedic examiner that with his education most of the jobs he would be able to get would require a lot of physical movement which he could not do anymore, he then reported that when he used to work in a big warehouse he was able to continue working by riding around in a golf cart instead of walking. The Veteran reported that he had no limitation with sitting, that he could stand for 10 to 15 minutes and that he could walk half a block with a cane. He was independent in all activities of living and he could drive a car. Although the Veteran's service-connected left ankle disability interfered with employment prior to May 29, 2015, as noted by the Veteran, a job in the past had been able to accommodate his left ankle disability. Although the Veteran has asserted that his educational background is limited, he has past experience as a manager, which would indicate the ability to perform some non-physical jobs. Additionally, he reported that he was able to drive, to sit for unlimited periods, to stand for limited periods and to walk for limited periods. Furthermore, at that time he indicated that the disability most effecting his ability to work was PTSD, which was not one of his service-connected disabilities prior to May 29, 2015. All of this evidence indicates that the Veteran was not prevented from engage in employment due to his service-connected disabilities prior to May 25, 2015. In sum, prior to May 29, 2015, the Veteran did not meet the schedular requirements for a TDIU, and the evidence does not otherwise demonstrate that he was unable to follow or maintain a substantially gainful occupation due to his service-connected disabilities. Accordingly, referral for extraschedular consideration for a TDIU prior to May 29, 2015, is not warranted. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to TDIU prior to May 29, 2015 is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, R. E. 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.