Citation Nr: 21006874 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-52 400 DATE: February 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for assignment of a TDIU and the preponderance of the evidence does not establish 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, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.16(b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from August 1954 to August 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Entitlement to a TDIU During previous adjudication of the Veteran’s claims before the Board, the Board found that the record warranted referral for consideration for a TDIU based upon his September 2018 written submission to the Board. See October 2019, Board Decision (citing to September 2018, Written Correspondence from Veteran). Upon review of the Veterans claims file, the Director of Compensation Service (Director) denied entitlement to an extraschedular TDIU in November 2020, finding that the evidence of record did not satisfactorily demonstrate that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. As the Veteran’s claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board now has jurisdiction to address the merits of the Veteran’s claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Veteran is service connected for bilateral hearing loss, evaluated at 30 percent disabling; asbestosis, evaluated at 10 percent disabling; and tinnitus, evaluated at 10 percent disabling. See September 2020, Rating Decision. The combined evaluation for the service-connected disabilities is 40 percent disabling as of July 25, 2013. Therefore, the Veteran does not meet the schedular criteria for a TDIU 2014 (see 38 C.F.R. § 4.16(a)), and his claim must be considered under the criteria of 38 C.F.R. § 4.16(b). Initially, the Board notes that despite an attempt to obtain the requested information from the Veteran, he has failed to submit a VA Form 21-8940 or otherwise provided any relevant employment related documentation to substantiate a claim of unemployability due to his service-connected disabilities. See August 2020, Subsequent Development Letter. In support of the Veteran’s claim, the Board previously cited to correspondence received in September 2018, in which the Veteran requested that attached medical records be submitted for his “claim for unemployability because of secondary…stroke…resulting from asbestosis.” See September 2018, Written Correspondence from Veteran. In several VA examinations concerning the Veteran’s service-connected asbestosis, pulmonary function testing results reveal that the Veteran’s diagnosed, but not service-connected, COPD is the predominant condition responsible for the limitations in the Veteran’s pulmonary functioning. See July 2019, July 2017, January 2016, May 2014, February 2013, VA Examination Reports. The impact of the Veteran’s limited pulmonary function was described as creating limitations in walking short distances and ascending and descending stairs, with the Veteran reporting the need for rest with minimal exertion. VA examiners have explained that those limitations are attributed to the Veteran’s COPD and not his service-connected asbestosis as numerous examinations, as well as medical treatment records, since 2013 have found that the Veteran is diagnosed with asbestos-related pleural plaques, which are not usually medically associated with impaired pulmonary function. See July 2019, VA Examination Report. The diagnosed pleural plaques, service-connected as asbestosis, have been found as being a benign result of the Veteran’s asbestosis exposure, and do not result in adverse functional limitations inhibiting the Veteran’s ability to maintain substantially gainful employment. The Board has considered the private treatment opinions which accurately assess the Veteran’s pulmonary function. However, those records do not discuss the functional impact resulting from pulmonary function limitations in terms of differentiating COPD from the asbestos-related pleural plaques. See July 2014, Private Medical Opinion; March 2018, Disability Benefits Questionnaire. Indeed, the Veteran’s private medical records demonstrate that treating physicians from as early as 2011 attributed the Veteran’s limited pulmonary function and resulting functional impact to moderate to severe COPD. See 2011-2018, Private Treatment Records. As to the Veteran’s hearing loss and tinnitus disabilities, the Veteran reported in an October 2014 VA examination that the conditions make it hard to communicate. See October 2014, VA Hearing Loss and Tinnitus Examination Report. However, it is also noted that ongoing treatment records demonstrate that the Veteran’s use of hearing aids mitigated those effects, which do not otherwise inhibit the Veteran’s ability to work. The Veteran has not provided specific information regarding his employment, education, and training that would allow for further evaluation and consideration of whether the Veteran’s current employment is marginal or substantial and whether his service-connected disabilities render him unable to secure and follow substantially gainful employment in light of his education and occupational experience. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). The Veteran has not done so in this case. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to a TDIU on an extraschedular basis. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.340. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.