Citation Nr: 1756725	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  10-26 894	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 

INTRODUCTION

The Veteran served on active duty in the United States Air Force from March 1954 to February 1956.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The issue of entitlement to a TDIU was subsequently raised by the record.

In January 2017, the Veteran presented testimony before the undersigned Veterans Law Judge.  A hearing transcript is of record.

In February 2017, the Board remanded the issue for further development.  The Veteran's claims file has been returned to the Board for further appellate proceedings.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The preponderance of the evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 


CONCLUSION OF LAW

The criteria for entitlement to an extraschedular TDIU are not met.  38 U.S.C. 
§§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16(b) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16.  Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  See 38 C.F.R. 
§§ 4.16, 4.19.  The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative.  The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities.  However, the Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. 
§ 4.16(b) in the first instance without initially referring the claim to VA's Director of Compensation Services (Director).  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996).  

Here, the Veteran does not meet the schedular criteria for a TDIU.  38 C.F.R. 
§ 4.16(a).  Service connection is currently in effect for residuals of a postoperative right eye cataract with aphakia rated at 30 percent and inactive moderately advanced tuberculosis (TB) rated at 20 percent.  He has a combined rating of 40 percent from June 9, 2005.  

The Board remanded the case in February 2017 to allow referral for extraschedular consideration for a TDIU by the Director.  In July 2017, the Director determined that a TDIU on an extraschedular basis was not warranted.  Since the Director has issued an initial decision on extraschedular TDIU, the Board may now make a determination on the matter.  See Anderson v. Shinseki, 22 Vet. App. 423 (2008).

Initially, the Board notes that the Veteran did not return a completed VA Form 21-8940 to support his claim.  Notably, VA's Adjudication Procedures Manual requires a substantially complete VA Form 21-8940 to establish entitlement to a TDIU.  
See M21-1, IV.ii.2.F.2.b.  

Moreover, the Veteran has presented conflicting information regarding his work history.  In January 2017, the Veteran testified that he completed high school and after service he worked at the US Postal Service (USPS) but left due to his TB symptoms.  Subsequently, he reported working for the Housing Authority for a short period until he quit in 1994, because of his TB symptoms, and that he has been unemployed ever since.  See Board Hearing Transcript (Tr.) at 6.  However, in a more contemporaneous January 2002 VA examination report, he indicated ongoing employment with the El Paso Housing Authority as a security officer, for at least the past year.  A March 2002 VA treatment record reflects that the Veteran was medically retired, but did not note the cause. 

Regarding his right eye disability, VA examiners have noted that it has no significant effect on occupation, and the Veteran does not claim otherwise.  See January 2008 and June 2010 VA examination reports.  

Regarding his TB residuals, while the Veteran reported that he had to stop working due to his TB symptoms, including shortness of breath, productive cough, chest pain, and fatigue (see June 2009 and March 2016 VA examination reports), the June 2009 and March 2016 VA examination reports reflect only mild respiratory symptomatology on pulmonary function testing and therefore do not indicate that the Veteran is physically incapable of employment due to his inactive TB.  In this regard, although the March 2016 VA examiner noted that the Veteran was unable to work due to moderate to severe shortness of breath with walking short distances, this finding is completely at odds with the objective pulmonary test results at that time, which revealed only a mild functional deficit.  Specifically, the examiner found that the Veteran's Diffusion Capacity of the Lung for Carbon Monoxide (DLCO) test results most accurately reflected his current pulmonary functioning, and he was able to achieve a DLCO of 93 percent predicted at that time pre-bronchodilator (no post-bronchodilator result was listed, as pre-bronchodilator results were normal (see 38 C.F.R. § 4.96(d)(4)), which does not even warrant a compensable rating under the criteria for rating respiratory disorders.  Moreover, the Veteran's chest x-ray at that time was completely normal, and the examiner indicated there were no other significant diagnostic test findings and/or results.  These findings are consistent with the July 2009 VA examination report, which also demonstrated normal pre-bronchodilator spirometry results and chest x-ray.  The Board emphasizes that the Veteran has active non-service connected coronary artery disease, which per the rating schedule is rated based on symptoms including exercise intolerance and dyspnea and fatigue on exertion.  See 38 C.F.R. § 4.104, Diagnostic Code 7005.  The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Here, the Veteran's objective respiratory examination results in this case do not support his assertion that he is unable to work due to his inactive TB.  

The Board acknowledges that the Veteran has been unemployed during the appeal period.  However, as noted above unemployment and/or underemployment are not equivalent to unemployability.  Here, the preponderance of the evidence does not indicate that the Veteran is incapable of working due to his service-connected TB and right eye disabilities, without regard to his age or the impairment caused by any nonservice-connected disabilities.  The Board emphasizes that the industrial impairment due to the Veteran's disabilities is already contemplated in the combined 40 percent rating currently assigned.  38 C.F.R. § 4.1 (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).  Accordingly, for the reasons outlined above, the Board finds an extraschedular TDIU is not warranted.

ORDER

Entitlement to a TDIU on an extraschedular basis is denied.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs