Citation Nr: 25004472 Decision Date: 04/02/25 Archive Date: 04/02/25 DOCKET NO. 09-32 088 DATE: April 2, 2025 ORDER Entitlement to total disability due to individual unemployability (TDIU) on an extraschedular basis prior to June 15, 2011, is denied. FINDING OF FACT Prior to June 15, 2011, the Veteran's service-connected disabilities did not prevent the Veteran from obtaining or maintaining gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to June 15, 2011, 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 1968 to May 1972. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2022 decision, the Board denied the claim for total disability for individual unemployability prior to June 15, 2011. The Veteran timely appealed the Board's March 2022 decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2023, CAVC vacated the Board's March 2022 decision and remanded the case to the Board. In March 2024, the Board remanded the claim for the RO to refer the Veteran's case to the Director, Compensation Service, for extraschedular consideration of a TDIU in accordance with 38 C.F.R. §4.16(b). The claim has now returned to the Board. Entitlement to total disability due to individual unemployability on an extraschedular basis prior to June 15, 2011. The Veteran has claimed entitlement to a total rating due to unemployability prior to June 15, 2011. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where 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 that 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. § 4.16(a). Prior to June 15, 2011, the Veteran had the following service-connected disabilities: diabetes, rated at 20 percent since January 26, 2004; peripheral neuropathy, rated at 10 percent each for right and left upper and lower extremities since December 3, 2009; and allergic rhinitis and asthma rated as noncompensable since May 8, 2002. Thus, the Veteran's combined disability rating was 20 percent from January 26, 2004, to December 3, 3009, and 50 percent from December 3, 2009, to June 15, 2011. Therefore, the Veteran does not meet the criteria for a schedular TDIU prior to June 15, 2011. When the percentage requirements for a TDIU are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 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 Board's inquiry is whether referral for extraschedular consideration is warranted in light of the evidence. If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to refer the issue to the Director of the Compensation Service for an advisory opinion as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board remanded for that opinion in March 2024, and the opinion was obtained in December 2024. The Director of Compensation Service's advisory opinion was that the Veteran's service-connected disabilities did not prevent gainful employment prior to June 15, 2011. The Board notes that its prior determination that referral was warranted based on evidence suggesting unemployability due to the Veteran's service-connected disabilities is based on an evidentiary threshold lower than that for a grant of extraschedular TDIU. See Ray v. Wilkie, 31 Vet. App. 58, 61 (2019). Moreover, the Board is not bound by the Director's advisory opinion, but rather must conduct a de novo review. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts a de novo review of the Director's decision denying extraschedular consideration). In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. See Van Hoose, 4 Vet. App. at 363. The Board finds that although the Veteran was unemployed during the period on appeal, he was not rendered unemployable by the disabilities for which he was service connected at that time. In an April 2005 application for increased compensation based on unemployability, the Veteran reported he last worked full time in December 1978. The Veteran reported he was unable to work due to his schizophrenia, which the Board notes is not service connected. The Veteran reported he had completed one year of college prior to becoming too disabled to work in 1978 and underwent private investigator training in 2002 to 2003. The Veteran's Social Security Administration (SSA) records indicate that he was awarded disability benefits beginning in 1986 related to his schizophrenia and other functional psychotic disorders. Although the Veteran was undoubtedly not working during the period on appeal prior to June 15, 2011, for purposes of entitlement to a TDIU, the Board may only consider the effects of his service-connected disabilities on his employability. Therefore, the Board will consider the Veteran's occupational limitations due allergic rhinitis and asthma since May 2002, diabetes since January 2004, and upper and lower peripheral neuropathy since December 2009. Private annual physical evaluations in February 2004, 2005, and 2006 and September 2007 and 2008 note normal upper and lower extremity reflexes and monofilament testing in the feet bilaterally, although in 2008 he reported tingling in his feet occasionally. Records note sinus surgery in 2004. He is noted to have asthma but no shortness of breath on his annual physical evaluations, with the exception of 2008 when he reported shortness of breath "occasionally." The Veteran was afforded a VA examination for his diabetes mellitus in December 2005. He reported no ketoacidosis and no hypoglycemic reactions. He indicated occasional anal pruritus, loss of strength, and numbness and tingling in his feet. Testing showed normal strength, pulses, and reflexes in his lower extremities. Testing also showed mild peripheral neuropathy in both feet. An April 2007 private neurological evaluation indicates that the Veteran reported being on oral medication for diabetes but denied numbness and tingling. His gait was noted to be normal as well as his motor strength, muscle bulk and tone, and reflexes. Sensory exam was normal to light touch, pinprick, vibration, and temperature. From February to July 2008, the Veteran was hospitalized for psychiatric reasons. His discharge summary notes his taking medication for diabetes, but do not indicate any symptoms of the condition impairing his functioning, including neuropathy. The Veteran underwent another VA examination in April 2008. At that time, he was noted to be taking insulin and oral medication for diabetes control. He denied any episodes of hypoglycemic reactions or ketoacidosis. He was instructed to follow a restricted or special diet but was not restricted in his ability to perform strenuous activities. He denied symptoms of diabetic related peripheral vascular disease, cardiac symptoms, visual symptoms, neurovascular symptoms, and peripheral neuropathy. He did report nausea related to his diabetes. No motor or sensory loss was noted on examination. At a November 2009 VA examination, the Veteran reported having a hypoglycemic reaction once a week but denied hospitalization for any reactions. He reported anal pruritus and a loss of strength. He denied visual problems, kidney problems, and heart problems related to diabetes mellitus. He reported numbness and tingling of the feet and toes and hands and fingers, which he said started in 2008. Testing showed normal strength, pulses, and reflexes in his upper and lower extremities. Testing also showed moderate peripheral neuropathy in the upper and lower extremities. The Veteran described the numbness and tingling as increasing two or three times per day and described it as mild. He also reported flare-ups of pain to the three times per day lasting 30 minutes. The examiner indicated the Veteran has weakness and fatigue but no functional loss, and the peripheral neuropathy does not interfere with his daily activities. In April 2010, a VA vocational rehabilitation counselor noted that the Veteran had been unemployed for more than 30 years. In service he was an inventory management specialist and supply computer systems specialist. After service he worked as a county administrator and briefly as a tax fraud investigative aide. The Veteran reported that over the last decade he had completed classes at career institutes on subjects including home inspection, hotel and restaurant, accounting, forensic science, and contractor/construction management. The counselor indicated that the Veteran's service-connected disabilities caused constant fatigue and physical limitations on lifting that would significantly impact his physical and mental ability to sustain work. Specifically, the counselor indicated that the Veteran's diabetes would cause difficulties standing or walking for more than 1 hour at a time and limit his ability to lift more than 20 pounds occasionally and 10 pounds frequently. He would need regularly scheduled breaks. In another VA vocational report, the Veteran was noted to report that his service-connected diabetes does not bother him as his blood sugar is under control and that although he does experience fatigue from time to time, he thought it was due to his age and not his diabetes. The report indicates that the Veteran stated he felt he could only do office work given his physical limitations. VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Merriam-Webster online dictionary defines sedentary as doing or requiring much sitting, not physically active. See https://www.merriam-webster.com/webster.com/dictionary/sedentary. Under 20 C.F.R. § 404.1567(a), SSA defines sedentary work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally, and other sedentary criteria are met. The Board finds that the Veteran does have some physical limitations due to his service-connected diabetic peripheral neuropathy. Such limitations would prevent him from performing physically demanding labor. However, the evidence does not reflect that the Veteran would be precluded from more sedentary work. In fact, the Veteran's work experience is more of a sedentary nature, including as a county administrator. The Veteran further has some education in sedentary-type work including accounting. The Board acknowledges that the Veteran's limited work history and his nonservice-connected conditions, including schizophrenia, are a significant cause of employment difficulties. However, the Board finds that considering only the Veteran's service-connected diabetes, peripheral neuropathy, allergic rhinitis, and asthma, prior to June 15, 2011, the evidence is persuasive that the Veteran was not unemployable. Although the Veteran had some physical limitations due to his peripheral neuropathy specifically, his service-connected conditions would not preclude the sedentary types of employment for which he has relevant training and experience. The record further does not reflect that the Veteran's service-connected disabilities resulted in any limitation in mental ability that would have precluded employment. Although there is some suggestion his diabetes could have been the cause of some fatigue, the record does not reflect a level of impairment that would result in an inability to obtain or maintain gainful employment. (Continued on the next page) ? Based on the forgoing, the Board finds the evidence is persuasively against a finding that the Veteran was precluded from securing or following all forms of a substantially gainful occupation due to his service-connected disabilities prior to June 15, 2011. As the evidence of record is persuasively against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim of entitlement to an extraschedular TDIU rating prior to June 15, 2011, is denied. J.M. ESTES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.