Citation Nr: 1756581 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-13 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to March 12, 2009, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Charles D. Romo, Attorney ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). At that time, the RO granted the Veteran TDIU effective March 1, 2010. In March 2017, the Board granted an effective date for TDIU of March 12, 2009 and remanded the present claim so that it could be considered on an extraschedular basis. See 38 C.F.R. § 4.16(b). FINDING OF FACT The Veteran's service-connected disabilities, consistent with his education and occupational experience, did not preclude him from securing or following substantially gainful employment prior to March 12, 2009. CONCLUSION OF LAW The criteria for an extraschedular TDIU prior to March 12, 2009, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such 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). For the period from April 2008 to March 12, 2009, the record reflects that the Veteran's service-connected esophageal stricture due to throat cancer was rated at 30 percent, gastroesophageal reflux disease (GERD) due to throat cancer was rated at 10 percent, hypothyroidism due to throat cancer was rated at 10 percent, and throat cancer and cervical deformity due to throat cancer were rated as noncompensable. Thus, the Veteran's combined evaluation for his service-connected disabilities was 40 percent from April 2008 to March 12, 2009 and the percentage requirements for a schedular TDIU were not met. Id. A TDIU may be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). In determining whether a veteran is entitled to a TDIU, neither the veteran's nonservice-connected disabilities nor age may be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2017). Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). By way of background, the Veteran was diagnosed with squamous cell carcinoma in November 1994. The cancer involved his left tonsil, part of his tongue, and hard palate. He received surgical and radiological treatment. The evidence of record includes a March 2008 outpatient note which reported the Veteran worked in the construction industry but he was not going to continue working in construction because the market was bad. In June 2008, the Veteran noted that as a result of his throat cancer and surgical treatment, he has no saliva glands. It was difficult for him to swallow and he needed to use water in place of saliva. That same month, the Veteran received an Agent Orange examination which noted only that the Veteran was retired without discussing why he retired. A March 2009 VA esophageal examination report reflects that the Veteran was retired based upon eligibility by age or duration of work. The examiner noted that the Veteran's throat cancer, GERD, cervical deformity, hypothyroidism, and strictures with dysphagia had a moderate effect on chores and a severe effect on feeding, but had no effect on shopping, exercise, sports, recreation, traveling, bathing, dressing, toileting, and grooming. A June 2009 VA examination report indicates that the Veteran was not currently employed, that he was not retired, and that he was unemployed due to medical issues. An August 2016 VA examination report indicates that during the relevant period the Veteran's service-connected disabilities resulted in the Veteran being capable of substantive gainful activities; specifically sedentary duties, which included lifting/carrying a maximum of 20 pounds, standing/walking a maximum of two hours, and sitting a maximum of six hours. The examiner also opined that the March 2009 and June 2009 VA examinations did not support unemployability but instead listed none-to-moderate functional limitations. As such, he concluded that the Veteran should have been capable of sedentary duties. The Veteran has had hospitalizations but for other medical conditions unrelated to the throat cancer and service-connected residuals. In his claim for TDIU, the Veteran noted he became too disabled to work in December 2008 because scarring from surgery made it dangerous to work. In addition, he had lung problems which caused tiredness. The Board notes the Veteran has been diagnosed with chronic obstructive pulmonary disease but was not service connected for that disability. He also has been treated on multiple occasions for pneumonia or pneumonia symptoms. The evidence of record reveals that the Veteran has a GED and no additional training. He was self-employed in home construction until he stopped working in December 2008. As noted, a veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board finds the evidence of record is against the Veteran's assertion that he could not obtain and maintain substantially gainful employment due to his service-connected disabilities prior to March 12, 2009. Neither the throat cancer nor his other service-connected disabilities have been determined by medical experts to have a functional impact that prevents the Veteran from obtaining and maintaining gainful employment. While the disabilities have some functional impact upon employment, it was at most of a moderate degree, allowing the Veteran to function in the right environment. The main area of functional impact was swallowing, which affects eating and needing water for swallowing. There is no indication the Veteran no longer had an ability to organize a job and efficiently complete work or had communication problems or impaired judgment or thinking. The Veteran did not present any evidence of events leading up to his ceasing employment in December 2008 demonstrating he could not handle work to his customers' satisfaction, including timeliness, cost, or the finished product. In finding that the Veteran was able to secure and maintain some gainful employment, the Board has taken into account that the Veteran has additional skills beyond a high school (GED) education and construction skills. The Veteran owned and operated his own business. The Board finds that owning and operating a business has given the Veteran useful skills for employment. For instance, he has administrative skills such as keeping financial records or other tasks that keep a business operating. The Veteran may have skills and abilities to act as a supervisor if not in the construction business, then in some other area. Being self-employed before December 2008 suggests he has sales skills generally. Thus, the Veteran may have been required to give up the advantages of self-employment, but he was still employable in a position that would take advantage of his managerial, sales, and administrative skills. The Board has also placed great probative weight upon the August 2016 VA examiner's review and conclusions regarding the effect of the Veteran's disabilities upon employment. According to the examiner, the Veteran could work in a more sedentary position and with some limitations could lift/carry, stand, and sit. The Board has no doubt that the Veteran's service-connected disabilities have resulted in some limitations upon employment, but the disabilities, either by themselves or in combination, did not prevent the Veteran from obtaining and maintaining employment during the period in question. The mere fact that he did not work or did not make substantially gainful income from December 2008 to March 2009, for which he claims entitlement to an extraschedular TDIU, does not establish that he was unable to work due to his service-connected disabilities. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he could find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"); see also Van Hoose, 4 Vet. App. at 363 ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment."). If the Board were to accept the Veteran's argument that evidence of occupational limitations due to a service-connected disability or disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a veteran challenged the assigned evaluation. The Board notes the Veteran, when filing his TDIU claim, cited scars and lung problems; not throat cancer, esophageal stricture, GERD, or hypothyroidism, as the reason he was incapable of employment. Nevertheless, the Board has considered entitlement to TDIU based only upon his disabilities that were service connected prior to March 12, 2009. As discussed above, the service-connected disabilities may have impacted his ability to obtain and maintain employment, but did not prevent it. Based upon all of the foregoing evidence, the Board finds that the preponderance of the evidence is against entitlement to an extraschedular TDIU prior to March 2009. See 38 C.F.R. § 4.16(b). ORDER Entitlement to TDIU on an extraschedular basis prior to March 12, 2009 is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs