Citation Nr: 21004857 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-33 740 DATE: January 28, 2021 ORDER Entitlement to a total disability rating based upon individual employability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular criteria for TDIU. 2. The Veteran service-connected disabilities are not shown by the evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant consideration of TDIU on an extraschedular basis. CONCLUSION OF LAW 1. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veteran’s Appeals (Board) from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) RO denying entitlement to a TDIU. In November 2019, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In a February 2020 decision, the Board recharacterized the Veteran’s claim for service connection for asbestosis to better reflect the Veteran’s claim and the evidence of record. The Board also remanded the issues to the AOJ for additional development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998).  The Board also notes that in the February 2020 decision, the issue of entitlement to service connection for a lung disability, to include chronic cough and pulmonary nodules as due to asbestosis, was also remanded. In a December 2020 rating decision, the RO granted service connection for this issue. As such, the claim for entitlement to service connection for a lung disability, to include chronic cough and pulmonary nodules as due to asbestosis, has been favorably resolved the in full and is no longer before the Board. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2019). The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). 1. Entitlement to a TDIU due to service-connected disabilities is denied. The Veteran is seeking entitlement to a TDIU. Specifically, the Veteran contends that he could no longer perform the requirements of his profession as a hairdresser due to his service-connected lung disability. See October 2017 TDIU Claim. A total rating for compensation may be assigned where the schedular rating is less than total when 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 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). In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). 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. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. See Smith v. Shinseki, 647 F.3d 1380, 1384 (Fed. Cir. 2011). A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board is not also required to identify a specific job that a veteran can work. Pederson v. McDonald, 27 Vet. App. 276, 286-87 (2015) (en banc). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, the Veteran is service connected for a lung disability with a 30 percent disability effective November 24, 2015, and for tinnitus with a 10 percent disability rating, effective October 14, 2020. His combined rating during the appeal period is thus at most 40 percent and none of the exceptions in 38 C.F.R. § 4.16(a) (1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Therefore, the Veteran does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the issue before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. The initial extraschedular referral decision under § 4.16(b) should address whether 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). Turning to the evidence of record, in his October 2017 TDIU claim, the Veteran indicated that he has a high school level education and has specialized training in cosmetology. He last worked in 2011. In his November 2019 Board hearing, the Veteran asserted that he stopped working as a barber because of his coughing and difficulty concentrating. Review of the record also reveals that the Veteran has been provided with VA examinations for his service-connected disabilities. In a June 2020 respiratory examination, the Veteran reported that he is unable to walk for too long without stopping due to his breathing, a chronic cough, and getting easily tired. The examiner noted that the functional impact of the Veteran’s respiratory disability is only reduced exercise capacity. In a January 2021 tinnitus examination, the examiner noted that the functional impact of the Veteran’s tinnitus is difficulty hearing and communicating with family, difficulty concentrating, and that he is depressed and withdrawn. In addition, although VA treatment records (VATR) show the Veteran can only walk 200 feet without having to stop due to his breathing, VA Treatment records show the Veteran does not need assistance with handy work. See also September 2020 VATR; February 2020 VATR; August 2015 VATR; December 2013 VATR. Having reviewed the record, the Board finds that the preponderance of the evidence does not show that the Veteran is unemployable by reason of his service-connected disabilities. While the Board readily acknowledges that the Veteran’s service-connected disabilities do limit his physical activities and ability communicate, in light of the Veteran’s overall disability picture and specific education and vocational history, the evidence does not show that he is precluded from securing or following any substantially gainful occupation as a result of his service-connected disabilities. Specifically, the VA examinations of record, which incorporate the Veteran’s lay assertions, indicate only that the Veteran’s exercise capacity is reduced and that he has difficulty hearing. See June 2019 VA Examinations. In addition, although the Veteran asserts that his left his employment due to his service-connected disabilities, there is no indication in the VA treatment records, private treatment records, or lay assertions that the Veteran cannot obtain or maintain sustainable employment. In reaching this determination, the Board has indeed considered the Veteran’s consistent and competent that he left his employment due to his coughing and inability to concentrated due to his service-connected lung disability. See October 2019 Board Hearing. The Veteran is competent to report symptomatology because this requires only personal knowledge as it comes to him through his senses and his statements regarding his in this case are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that the probative value of his allegations is outweighed by the aforementioned medical records during this period of the appeal. The competent and credible evidence concerning the nature and extent of the Veteran’s disability has been provided and included in relevant medical findings in conjunction with the examinations. See June 2019 VA Examinations. In this regard, the medical findings (as provided in the examination reports and medical records) directly address the evaluation criteria and functional loss associated with his disabilities. Furthermore, as noted above, the Board is not required to identify a specific job that a veteran can work. Rather, the Board must consider the evidence, including the medical and lay evidence, and determine whether, taking into account factors such as the veteran’s education, training and work history, it shows that the veteran is unable to secure and follow substantially gainful employment. Pederson v. McDonald, 27 Vet. App. 276, 286-87 (2015) (en banc). Here, although the record shows that the Veteran only has a high school level diploma and the Veteran’s service-connected disabilities have resulted in some impairment regarding physical demands, the record fails to show that based on the Veteran’s education, training, and work history, he is unable to secure and follow substantially gainful employment as a result of his disabilities. (Continued on the next page)   Based on the foregoing, the preponderance of the evidence reflects that the functional impairment from the Veteran’s service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. Therefore, the record does not contain sufficient evidence to substantiate a reasonable possibility that he is unemployable by reason of his service-connected disabilities. Accordingly, the procedures for referring this matter for extraschedular consideration are not met, and referral for extraschedular TDIU consideration is not warranted at this time. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate Counsel 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.