Citation Nr: 21011814 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-09 981 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 9, 2012 is denied. FINDING OF FACT Prior to May 9, 2012, the Veteran’s service-connected disability did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, prior to May 9, 2012, are not met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from June 1984 to December 1984, August 1988 to October 1988, February 2003 to January 2004, and July 2009 to August 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying entitlement to TDIU. In a May 2017 Board decision, the Board inferred an extraschedular TDIU claim as a part and parcel of an increased rating claim that was also on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-44 (2009). The matter was remanded for further development. In January 2015, the RO granted entitlement to a TDIU from January 17, 2013 onwards. Although the Veteran did not appeal the effective date of the TDIU grant, because the 10 percent rating of hiatal hernia with gastritis was still on appeal at the time that the TDIU claim was made, the Board remanded the issue of entitlement to a TDIU prior to January 17, 2013. The Board specifically referred the period prior to August 17, 2011 to VA's Director of Compensation Service (Director) for extraschedular consideration under § 4.16(b) because the Veteran was only service connected for hiatal hernia with gastritis at 10 percent during that period, therefore failing to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1 (2001). In May 2020, the RO readjudicated the TDIU claim and granted an earlier effective date of May 9, 2012, but did not refer the extraschedular period, in noncompliance with the prior remand. Therefore, in July 2020, the Board remanded again for extraschedular referral. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions). Following the RO’s October 2020 referral, VA’s Director of Compensation Service conducted administrative review in December 2020 for extraschedular consideration of the Veteran’s claim for a TDIU. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative 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). Analysis As a preliminary matter, the Board would like to emphasize that although the May 2017 remand found that the record raised the issue of extraschedular TDIU, at no point did the Veteran ever contend entitlement to extraschedular TDIU. Per the Veteran’s VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran was initially only seeking TDIU for May 2012 forward – a period during which he was already eligible for schedular TDIU. Furthermore, despite referring for extraschedular consideration, the Board never made a pseudo-factual finding that the record reflected that the Veteran’s hiatal hernia disability precluded substantially gainful employment. The referral appears to have stemmed from the timing of the Veteran’s application for TDIU, during which the 10 percent rating for the Veteran’s service-connected gastrointestinal disability was still on appeal. The Board found that “applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought. It follows that such a claim remains in controversy where less than the maximum benefit available is awarded. Thus, the issue of entitlement to TDIU prior to January 17, 2013 is also on appeal before the Board… [and] referral to the Director of Compensation and Pension services is required for consideration of extraschedular TDIU prior to August 17, 2011.” There was no apparent consideration of the Veteran’s employability when the referral for extraschedular consideration was made. Thus, the proceeding adjudication will be the first time that the Board discusses whether the facts of the case support a finding that the Veteran’s service-connected hiatal hernia with gastritis genuinely precluded substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase 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. If a claimant does not meet the threshold criteria, entitlement to a TDIU still may be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates "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." Id. (emphasis added). 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 of Compensation Service (Director) for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As noted in the introduction, the May 2017 and July 2020 Board remands requested the AOJ refer the Veteran’s claim to the Director for consideration of whether a TDIU was warranted on an extraschedular basis. Such was accomplished and an Advisory Opinion denying entitlement to extraschedular TDIU was issued by the Director in December 2020. As a general matter, the Board is not bound by the Director’s Advisory Opinion findings. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Board is also not bound by the prior remand directives to refer the matter for Director review. Ray, 31 Vet. App. at 58 (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). In Ray v. Wilkie, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. Here, the Board agrees with the Director’s assessment that the evidence of record does not support TDIU prior to August 17, 2011. Prior to August 17, 2011 the Veteran was service-connected for hiatal hernia with gastritis, rated as 10 percent. This rating was effective starting September 15, 2006. However, this rating was discontinued due to a period of active service between July 6, 2009 to August 16, 2011. Because compensation benefits cannot be granted for periods of active duty service, the time period truly relevant for this adjudication is from September 15, 2006 to July 6, 2009. With regard to the economic considerations, the Veteran reported having been employed as a physical education teacher since August 1998 between periods of service. He reported having obtained a bachelor’s degree after completing four or more years of college. He also reported making approximately $15,500 a year in his position. The poverty thresholds for one person between 2006 and 2009 ranged from $10,294 to $10,956, indicating that this was not a position of marginal employment. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Feb. 4, 2021). The Veteran reported his occupation as requiring walking, standing, and sitting on a normal day. He regularly would need to lift and move different types of equipment. Thus, looking at economic considerations, the Veteran had the education, training, skills, and work history to perform substantially gainful work such as educational instruction. The 10 percent rating for the Veteran’s gastrointestinal disability was assigned because the Veteran’s medical records demonstrated that the condition caused him to suffer epigastric distress, dysphagia, and pyrosis. He needed to take Omeprazole on a daily basis to manage this condition. The Veteran contended that he was entitled to a higher rating because the disability was progressively worsening, despite continuing to use Omeprazole daily. In a March 2008 VA examination reported that his condition was causing him daily esophageal distress in the form of abdominal pain and daily heartburn, and that a few times a week it caused nausea and esophageal regurgitation. In that same examination however, the Veteran reported that the condition had never resulted in hospitalization, have never resulted in time lost from work, had no effects on his occupation, and had not caused any problems in performing his usual daily activities. This examination is the only VA exam within the relevant period that elucidates the extent of his symptoms, but other records outside this period also support a finding that the Veteran’s hiatal hernia with gastritis did not preclude substantially gainful employment. When the Veteran applied for TDIU in January 2013, he specifically wrote in the “Remarks” box that he was seeking this entitlement because of his spinal and psychiatric disabilities – there is no reference at all to his hiatal hernia and gastritis, which he was also service connected for at the time. In the Veteran’s June 2013 VA examination for his TDIU claim, he only complains to the examiner about his spinal and psychiatric conditions. Although he contends in September 2014 and December 2014 that he was seeking TDIU due to “all” his disabilities, discussion of any impairment by hiatal hernia or gastritis is notably withheld in TDIU-related documentation. Additionally, when the Veteran sought employment counseling with the VA’s Vocational Rehabilitation and Education services in April 2011, the Veteran once again discussed how his spinal and psychiatric disabilities impaired him but made no commentary regarding his gastrointestinal disability. Further, and perhaps most significantly, the Veteran applied for Social Security Disability in approximately 2012, although the exact date is unclear. In over 100 pages of Social Security documentation – including statements from private physicians, statements from the Veteran, and case analyses by Social Security personnel – the Veteran’s gastrointestinal disability was not mentioned once. Even on the Veteran’s list of medicines, neither Omeprazole nor any other gastrointestinal medication is listed despite reporting to take it daily. Again, the Veteran stated in a December 2014 correspondence that he received Social Security benefits due to the severity of “all” his service-connected disabilities, but the SSA documentation makes it clear that he was awarded benefits due to his psychiatric, spinal, and knee disabilities; the Veteran’s hiatal hernia and gastritis are never discussed. Finally, the Board notes that the Veteran was found fit for and enlisted to military service while still afflicted with his gastrointestinal disability – a fact that cuts sharply against a finding that the condition precluded substantially gainful employment. In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran is capable of substantially gainful work. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.