Citation Nr: 21069540 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-53 391 DATE: November 18, 2021 ORDER Entitlement to a total disability based on individual unemployability due to service-connected conditions (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran is not entitled to TDIU on an extraschedular basis as the evidence of record demonstrates that the residuals of the Veteran's larynx cancer with associated scarring do not result in an inability to obtain or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran filed a VA Form 9 appealing the RO's decision to deny his claim for entitlement to TDIU. The Board previously remanded the Veteran's claim for TDIU in January 2019, November 2020, and April 2021. In April 2021, the Board referred this matter to the Director, Compensation and Pension Service, for extraschedular consideration. In September 2021, the RO issued a supplemental statement of the case (SSOC). This matter is now properly before the Board. 1. Entitlement to (TDIU) on an extraschedular basis. A total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(b). The Veteran filed an application for increased compensation based on unemployability in August 2013. The Veteran noted that he was unable to work due to his disabilities effective July 22, 2002. The Veteran is service connected for residuals of cancer of the larynx at 30 percent from September 1, 2007 and scar residuals status post radiation therapy larynx cancer at 10 percent since November 26, 2010. The Veteran's combined evaluation is 40 percent from November 26, 2010. The Board acknowledges that the Veteran does not meet the schedular requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a). The Veteran is not service conned for any other disabilities. In viewing the Veteran's claims file, the Veteran was afforded a VA examination in March 2011. The March 2011 VA examiner noted the service-connected residuals, status post laryngeal cancer, in and of itself would not cause unemployability for most gainful employment, however the Veteran would not be able to perform an occupation that would require a significant amount of oral communication due to residuals. The Veteran was afforded another VA examination in March 2016, in which the March 2016 examiner noted that the Veteran's residuals of cancer, larynx has not hindered the Veteran's employment options and opportunities. The March 2016 examiner determined residuals of larynx cancer in and of itself would not hinder the Veteran from gainful employment. The Veteran had another VA examination in February 2021, in which the examiner noted that the Veteran's voice is hoarse and at times difficult to understand due to laryngeal cancer and side effects of radiation. The Veteran's medical records also note residuals of laryngeal cancer consist of aspiration and hoarse voice. In an August 19, 2021 memorandum from the RO to the Director, Compensation Service, the RO requested that the Veteran's claim for TDIU be granted on an extra-schedular basis as the medical evidence shows the residuals of larynx cancer causes hoarseness and at times an inability to clearly communicate. In September 2021, the Director, Compensation Service issued a formal decision which stated that the Veteran's claim for TDIU should be denied referencing the Veteran's prior VA examinations did not support a finding that the Veteran was unable to maintain employment due to larynx cancer. The September 2021 memorandum recommended a denial for TDIU indicating that a preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment. The Director found that based on the evidence of record, most of the reasons for the Veteran's unemployability are related to non-service-connected conditions such as the Veteran's 2002 stroke, posttraumatic stress disorder, and substance abuse. The Director explained that, although there are limitations due to the Veteran's service-connected condition, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment. The Director further noted that benefits granted under the VA rating schedule are intended to compensate veterans for the average impairment in earning capacity that results from service-connected disease or injury. TDIU is a special additional benefit to address the truly unique disability picture of a veteran who is unemployable due to service-connected disability, but for whom the application of the rating schedule does not fully reflect his level of impairment. The ultimate question here is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment. In this case, after giving consideration to all relevant evidence, the Director determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment. The Board agrees with the Director's finding. The record contains no further evidence demonstrating that the Veteran's service-connected disabilities alone result in an inability to obtain or maintain substantially gainful employment. The Veteran's VA examinations all show that he does suffer from hoarseness due to residuals of larynx cancer and as a result the Veteran is at times difficult to understand when he speaks. The evidence does not show that the Veteran's service-connected disabilities alone result in an inability to obtain or maintain any form of gainful occupation. The evidence of record indicates that the Veteran's unemployability is a result of other non-service-connected disabilities. The Veteran noted that he became unable to continue working as a truck driver on July 22, 2002. The evidence of record indicates that the Veteran suffered from a stroke in July 2002 in which the Veteran was hospitalized for. The Board recognizes that the Veteran believes he is entitled to TDIU benefits. However, he has not provided VA with any evidence, medical or otherwise, demonstrating that his service-connected disabilities alone render him unable to obtain or maintain a gainful occupation. The Board can only consider the service-connected disabilities, and at the present, these are only the residuals of cancer of the larynx with associated scarring. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to TDIU benefits on an extraschedular basis must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.