Citation Nr: 21062367 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 20-13 919 DATE: October 7, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to October 1975. In February 2021, the Board most recently remanded the issue on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see also 38 C.F.R. § 4.19. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). The evidence of record indicates that the Veteran met the schedular requirements for TDIU as of October 17, 2018. From this date he was service connected for broken mandible at 50 percent disabling; headaches at 30 percent disabling; and esophageal cancer at noncompensable for a total disability rating of 70 percent. In a December 2018 Temporomandibular Joint Disorder (TMD) examination, the examiner indicated that the Veteran's condition did not impact his ability to work. In a December 2018 Headaches examination, the examiner indicated the Veteran's condition impacted his ability to work and that he had "flexible work hours." In a December 2019 Headaches examination, the examiner indicated the Veteran's condition impacted his ability to work. Specifically, he noted "[The Veteran] retired because of his headaches. When he had a headache on the night shift he would have to find a place to lay down for a while. Then he would have to pay catchup on his work after resuming his work. His headaches would require missing work at least one day a week." In a March 2021 Esophageal Conditions examination, the examiner indicated the Veteran's condition impacted his ability to work. Specifically, he noted that the Veteran felt weak and tired. In March 2021, the Veteran submitted VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. He stated that he became too disabled to work on March 11, 2018. He further noted that his highest level of education was two years of high school and he last worked as a mechanic. In associated correspondence, the Veteran stated that he worked nights and would often stop working and lay down to gain relief from his disabilities. In an April 2021 TMD examination, the examiner indicated the Veteran's condition impacted his ability to work. Specifically, he noted symptoms of pain, locking, dizziness, and hearing ability. In an April 2021 Headaches examination, the examiner indicated that the Veteran's condition did not impact his ability to work. Based on the foregoing, the Board finds that the totality of the evidence is against finding that the Veteran's service-connected disabilities render him unemployable. Specifically, the evidence suggests that while the Veteran had to take breaks during his shifts while he was employed, ultimately his service-connected disabilities did not preclude him from actually working. VA examiners have also opined that the Veteran's service-connected disabilities, specifically his headaches and TMD, do not prevent the Veteran from maintaining employment. Therefore, the Board finds that the Veteran is able to secure and follow a substantially gainful occupation L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.