Citation Nr: 25004865 Decision Date: 04/10/25 Archive Date: 04/10/25 DOCKET NO. 20-13 812 DATE: April 10, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 6, 2019, is denied. FINDING OF FACT 1. From October 26, 2017 and prior to June 6, 2019, the Veteran is in receipt of a combined 100 percent schedular rating based on multiple service-connected disabilities, and the evidence does not persuasively weigh in favor of a finding that a single service-connected disability rendered the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history during that period. 2. For the period on appeal prior to October 26, 2017, the evidence does not persuasively weigh in favor of a finding that the Veteran's service-connected disabilities, alone or in combination, rendered 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 June 6, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2024 Board decision, the claim of TDIU prior to June 6, 2019, was remanded as intertwined with the Veteran's claims for service connection for erectile dysfunction and obstructive sleep apnea. The Veteran's claims for obstructive sleep apnea and erectile dysfunction were granted in a February 2025 rating decision; however, the Veteran's claim for TDIU was denied. As such, the Veteran's claim for TDIU prior to June 6, 2019, returns to the Board for adjudication. Entitlement to total disability based on individual unemployability (TDIU) prior to June 6, 2019, is denied. The Veteran asserts entitlement to a TDIU prior to June 6, 2019. Specifically, the Veteran has reported that he has been unable to work since July 15, 2009, and his representative asserts within a March 2025 brief that VA should consider entitlement to a TDIU from October 26, 2017 based upon the Veteran's combined 100 percent disability rating from that date, as well as entitlement to an extraschedular TDIU prior to October 26, 2017. Following a review of the record, and as discussed further herein, the Board finds that the evidence persuasively weighs against the Veteran's claim of entitlement to a TDIU prior to June 6, 2019. The effective date of an award of TDIU is generally based the date of claim for entitlement to TDIU or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The record reflects that the Veteran submitted an intent to file on October 26, 2017, followed by a completed claim for increase and additional service-connected disabilities on November 14, 2017. Significantly, this is the earliest date of claim for entitlement to an increased rating, or express entitlement to a TDIU, that is still open and without a final decision on the merits. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. Entitlement to a TDIU is part and parcel of the Veteran's October 26, 2017 intent to file and subsequent November 14, 2017 increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, the appeal period under consideration begins on November 14, 2016, one year prior to the Veteran's increased rating claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Although the Board is cognizant that the Veteran has asserted unemployability from July 2009, the record does not reflect prior, ongoing claims for either entitlement to a TDIU or an increased rating that could justify an award of TDIU prior to November 14, 2016. Prior that that date, a November 1970 rating decision granted service connection for skull loss residuals of head trauma, rated as 30 percent disabling from February 26, 1970; cephalgia residual of epidural hematoma head injury, rated as 10 percent disabling from February 26, 1970; right hand scars, rated as 10 percent disabling from February 26, 1970; and scars of the neck and chest, rated as noncompensable from February 26, 1970. Thereafter, a November 1973 rating decision granted an increased 50 percent rating for skull loss residuals of head trauma from February 26, 1970. Notably, the Veteran did not appeal either of these rating decisions, and the next submission of record is the Veteran's October 26, 2017 intent to file, followed by his November 14, 2017 completed claim. Thus, the Board has limited its consideration to the period beginning November 14, 2016, one year prior to the Veteran's increased rating claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Indeed, 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). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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. 38 C.F.R. § 4.16(a). Prior to the current effective date of June 6, 2019, the Veteran is service-connected for the following: skull loss (rated as 50 percent disabling from February 26, 1970); sleep apnea (rated as 50 percent disabling from October 26, 2017); post-traumatic stress disorder (PTSD) (rated as 50 percent disabling from October 26, 2017); post-traumatic headaches (rated as 30 percent disabling from October 26, 2017); hearing loss (rated as noncompensable rating from October 26, 2017); right hand scars (rated as 10 percent disabling from February 26, 1970); post-traumatic encephalopathy (rated as 10 percent disabling from February 26, 1970); retained shrapnel in the neck (rated as 10 percent disabling from October 26, 2017); tinnitus (rated as 10 percent disabling from October 26, 2017); scars with retained foreign bodies (rated as noncompensable from February 26, 1970 and as10 percent disabling from October 26, 2017); erectile dysfunction (rated as noncompensable from October 26, 2017); and right hand scars (rated as noncompensable from October 26, 2017). Based upon the above, the Veteran's combined disability rating is 60 percent from February 26, 1970 and 100 percent from October 26, 2017. The receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). See id. Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is established whenever a Veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). Although a TDIU may satisfy the "rated as total" element of 38 U.S.C. § 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the requirement of "a service-connected disability" because that requirement must be met by a single disability. 38 U.S.C. § 1114(s); Youngblood v. Wilkie, 31 Vet. App. 412 (2019) (holding that a TDIU based on multiple service-connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16(a), such as disabilities from a common etiology, may not be used to establish "a service-connected disability rated as total" for SMC eligibility pursuant to § 1114(s)) (emphasis added). Given the above, the Board finds that a grant of TDIU for the period on appeal from October 26, 2017, to June 6, 2019, is not warranted because for that entire period, the Veteran's TDIU claim is moot due to his combined disability rating of 100 percent, without any single disability being rated as 100 percent disabling. Moreover, the medical evidence of record during the period does not show that a single service-connected disability rendered the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history. Rather, the evidence suggests that it is a combination of his service-connected disabilities that precluded his ability to perform the mental and physical acts necessary to maintain employment. Therefore, as the evidence does not show that a single service-connected disability renders the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and work history, a TDIU due to a single service-connected disability is not warranted from October 26, 2017 to June 6, 2019. Additionally, the Board finds that a referral for extraschedular TDIU consideration for the period on appeal prior to October 26, 2017 is not warranted. As noted above, the Veteran does not meet the minimum rating requirements of § 4.16(a) for consideration of a TDIU rating on a schedular basis prior to October 26, 2017, as his combined disability rating is 60 percent from February 26, 1970 and prior to October 26, 2017. Under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extraschedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board may not grant a TDIU in the first instance under this regulation, it must consider whether referral to the Director of Compensation and Pension Service (Director) for extraschedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of whether a case should be referred for an extraschedular TDIU determination under 38 C.F.R. § 4.16(b) is a lower standard than a determination on whether TDIU is warranted. See Snider v. McDonough, 35 Vet. App. 1, 6 (2021). Referral to the Director is warranted when there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see 38 C.F.R. § 4.16(b) (stating that, when submitting a veteran's case to the Director, "[t]he rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue"). The Veteran consistently asserts that he stopped working in 2009 due to his service-connected disabilities. However, following a review of the record, the Board finds that the functional impact of his service-connected disabilities prior to October 26, 2017 does not warrant referral for extraschedular consideration because there is no reasonable possibility that the Veteran was unemployable because of his service-connected disabilities prior to that date. The Board notes that there is little relevant evidence during the limited period on appeal prior to October 26, 2017. However, the Board notes that during a subsequent February 2018 VA PTSD examination, the Veteran reported that regarding his employment history after the military, he worked in a General Motors (GM) auto assembly plant and later went to school and became employed at the U.S. Customs Service, first as a clerk and later as a Customs Patrol Officer and then an Investigator. Overall, he worked at the U.S. Customs Service for nearly 24 years without incident and was regularly promoted and received all expected raises and retired in September 1999 from that agency. Citing the desire to make additional income and to stay busy, the Veteran returned to work a few months later for the Department of Energy and continued to work as a criminal background investigator for another decade, until 2009, when he retired for a second time. He reported no distress or issues related to his retirement. At a concurrent February 2018 VA hand examination, the Veteran had no impaired function of his right hand. During a concurrent February 2018 VA TBI examination, the Veteran denied any complaints of impairment of memory, attention, concentration, or executive functions. However, during a February 2018 VA headaches examination, he did report headaches about once a month that were too severe to go to work. The Board finds that the above evidence is probative evidence that weighs against the Veteran's claim. Notably, the February 2018 VA examinations do not link any service-connected disabilities to the Veteran's periods of unemployment for the limited rating period on appeal prior to October 26, 2017. Rather, the Veteran had previously reported that his periods of unemployment were due to factors unrelated to his service-connected disabilities, such as retirement. Additionally, the evidence of record does not otherwise indicate that his service-connected disabilities resulted in an inability to secure or follow a substantially gainful occupation for any period on appeal prior ot October 26, 2017. As such, the Board finds that referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of service-connected disabilities prior to October 26, 2017. (Continued on the next page) ? In conclusion, the most probative evidence of record persuasively weighs against the Veteran's claim of entitlement to a TDIU prior to June 6, 2019, as the Veteran's TDIU claim is moot from October 26, 2017 to June 6, 2019, and extraschedular referral is not warranted for the period on appeal prior to October 26, 2017. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Makarenko, Darya A. 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.