Citation Nr: 21062185 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-04 516 DATE: October 6, 2021 ORDER Referral for consideration of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for TDIU and referral for extraschedular consideration is not warranted because the evidence does not show that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW Referral for consideration of an extraschedular TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 through April 1970, with additional service in the reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in March 2021 addressed the other claims listed in that November 2017 rating decision but remanded the claim for TDIU for development. The VA provided a Form 21-8940 to the Veteran with a request to complete, but as of the date of this decision, no completed form has been received. The Board finds there was substantial compliance with the March 2021 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support is finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). 1. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) to include on an extraschedular basis is denied. The Veteran contends that he is entitled to a TDIU because of certain disabilities, including a cervical spine disorder and herniated disks, and a gastrointestinal condition. The Veteran stopped working in 1994 after a back injury sustained on the job and has been receiving Social Security benefits for several disabilities and as a result of his age. As will be outlined below, the Veteran does not meet the schedular criteria for TDIU and referral for an extraschedular TDIU rating is not warranted as the evidence does not indicate his service-connected disabilities alone preclude him from obtaining or maintaining substantially gainful employment that align with his skills, education, and job history. A total disability rating is warranted when, because of service-connected disabilities, a veteran is unable to secure or follow a substantially gainful employment. 38 C.F.R. § 4.16. A total disability rating for compensation purposes may be assigned where the schedular evaluation is less than total but the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or multiple service-connected disabilities rated at 70 percent or more when certain additional criteria are met. 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board is cognizant of the Court's recent holding in Ray v. Wilkie that the term "substantially gainful occupation" is not defined in the rating schedule and therefore, typically, a TDIU analysis has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Since March 27, 2009, the Veteran's service-connected disabilities include chronic gastritis with gastric ulcer, rated at 10 percent disabling, and hypertension, rated as noncompensable, resulting in a combined disability rating of 10 percent. As such, the schedular threshold has not been met. If a claimant does not meet the schedular criteria, a TDIU may still be assigned but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director for Compensation Services for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In this case, as will be outlined below, the Board finds referral is not warranted. In compliance with the Board's March 2021 remand, the RO provided the Veteran with the required guidance on how to support his TDIU claim, including providing him with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. To date, the Veteran has not submitted the completed VA Form 21-8940. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's complete employment history, educational history and training, and income information necessary to address a claim for TDIU. "The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board will consider the Veteran's claim without the valuable information that would have otherwise been provided by this updated form. What can be surmised from the Veteran's lay statements and other evidence of record is that prior to joining the military, the Veteran received a high school education. In between school and the military, he worked in a factory. During service, the Veteran worked as a "lineman" and did not reportedly receive any education or training during active duty. After leaving the military, the Veteran received financial support to attend training schools to become an electrician, a machinist, and participated in an advanced cosmetology program. According to medical records, the Veteran last worked at a telephone company and injured his back on the job in October 1992 as a telephone splicer. This is the last known employment, and according to lay statements submitted from the Veteran, he was unable to work again after this back injury. In short, the Veteran concedes that the reason he stopped working and the reason for his continued unemployability is because of a non-service-connected 1994 back injury. Again, consideration may not be given to impairment caused by nonservice-connected disabilities for purposes of TDIU. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Looking solely at manifestations of his service-connected gastritis and hypertension, moreover, the Board finds no basis to conclude referral would be appropriate for extraschedular consideration of a TDIU in this case. His gastritis, rated 10 percent disabling, was last evaluated in an April 2019 VA examination. At that time, the Veteran reported having daily abdominal pain, bloating, and nausea. He reported having to avoid certain foods and still suffered what he called "episodes" or flare ups two or three times per week. In the Veteran's February 2018 VA examination, the examiner opined that the chronic gastritis should not impact his ability to work. His hypertension, rated 0 percent disabling, was also last evaluated in an April 2019 VA examination. At that time, the examiner opined that the hypertension would not impact his ability to work. The Veteran continued to complain of high blood pressure despite medication but claimed no other symptoms or concerns during the examination. Looking at both economic and non-economic factors, the Veteran's past work history appears to be in manual labor, and none of the medical evidence suggests his hypertension and/or gastritis would prohibit such works. The Board has considered physical ability factors, including lifting, bending, sitting, standing, walking, climbing, and so forth, but none of the medical evidence suggests the Veteran's service-connected disabilities cause limitations as to these factors. The Board has also considered mental ability factors, but the Veteran is not service-connected for a psychiatric disability and there is similarly no evidence suggesting his service-connected gastritis or hypertension affect his mental ability. In short, the Veteran stopped working in 1992 due to a back-related injury, which is not service-connected. The Veteran himself concedes his inability to work is largely due to his non-service-connected back condition. The objective evidence, moreover, does not indicate any significant physical limiting factors or any mental limiting factors that would prevent substantial gainful employment. While the Board does not doubt that the Veteran would have difficulty obtaining or maintaining gainful employment stemming from the back-related injury, the Board is precluded from considering impairment caused by nonservice-connected disabilities. As such, the Board finds the preponderance of the evidence fails to establish that the Veteran is unable to maintain substantially gainful employment due solely to service-connected disabilities; therefore, referral for an extraschedular TDIU rating is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Boivin, 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.