Citation Nr: 21020894 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-34 213 DATE: April 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability, to include on an extraschedular basis, is denied. FINDING OF FACT The evidence does not show that the Veteran is rendered unable to secure and follow substantially gainful employment due to his service-connected gastroesophageal reflux disease (GERD). CONCLUSION OF LAW The criteria for entitlement to a TDIU due to a service-connected disability, including on an extraschedular basis, 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 in the United States Air Force from March 1971 to May 1974. In February 2014 the Veteran raised a TDIU claim by filing a VA Form 21-8940 application for increased compensation based on unemployability. However, the Veteran’s claim for entitlement to a TDIU was recognized by the Board in a September 2018 decision as part and parcel of the Veteran’s claim for an increased rating for his service-connected GERD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2018, the Board remanded the Veteran’s TDIU claim for additional development. Entitlement to a total disability rating based on individual unemployability, to include on an extraschedular basis Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). The Veteran is service connected for the following: duodenal ulcer with GERD and hiatal hernia, rated as 20 percent disabling from May 7, 1986 and 30 percent disabling from November 7, 2019; and tinnitus, rated as 10 percent disabling from November 4, 2019. From May 7, 1986 to November 3, 2019 the combined disability evaluation for compensation was 20 percent. From November 4, 2019 to November 6, 2019 the combined evaluation was 30 percent disabling. From November 7, 2019 to the present, the combined evaluation was 40 percent disabling. None of the Veteran’s disabilities have been rated as 40 percent or more. Therefore, the Board finds that the Veteran did not meet the schedular criteria for TDIU at any time during the appeal period. See 38 C.F.R. § 4.16 (a). Thus, the claim of entitlement to TDIU on a schedular basis must be denied. However, the Veteran may still be entitled to a TDIU on an extraschedular basis if his service-connected GERD nonetheless results in an inability to obtain and maintain substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, the question becomes whether this disability, in and of itself, precluded the Veteran from securing or following a substantially gainful occupation. The Board notes that the question of entitlement to a TDIU on an extra-schedular basis has already been adjudicated by the Director, VA Compensation Service, and therefore the Board has jurisdiction over the matter. See Bowling v. Principi, 15 Vet. App. 1 (2001). In a December 2019 advisory opinion, the Director of Compensation Service concluded the Veteran was not entitled to a TDIU, including on an extraschedular basis. The opinion found that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment. In his February 2014 TDIU application, the Veteran stated that his service-connected GERD prevents him from securing or following any substantially gainful employment. The record reflects the Veteran has an Associate Degree in management. His past employment includes working for a chemical company for 6 years and then as a letter carrier for 34 years until his retirement in 2013. The VA examinations of record note a mild to moderate impact during flare-ups on the Veteran’s ability to work. See, e.g. July 2014, November 2017, and July 2020 VA examinations. However, no medical evidence of record contains a finding by a healthcare professional that the Veteran’s service-connected GERD caused him to be unable to secure and follow any substantially gainful occupation. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In summary, the Veteran’s combined disability evaluations of 20, 30, and 40 percent are insufficient to consider TDIU on a schedular basis. 38 C.F.R. § 4.16 (a). The evidence of record does not suggest that the Veteran is entitled to a TDIU on an extraschedular basis because it does not show that he was precluded from securing or maintaining substantially gainful employment as a result of service-connected disabilities alone. The case was referred for consideration to the Director, Compensation Service, who found that an extraschedular TDIU should not be awarded. The post-service treatment records only support this finding. The Board acknowledges the contention by the Veteran’s representative in the March 2021 appellate brief that the case should be remanded to the Director of Compensation Claims as the disability rating for the Veteran’s GERD has since been increased to 30 percent. However, despite the increased disability rating, the record still does not contain evidence that the Veteran was precluded from securing or maintaining substantially gainful employment as a result of service-connected disabilities alone. As such, a remand is not warranted. This finding does not suggest, in any way, that the Veteran did not have some occupational problems because of his service-connected GERD; if he did not have any problems, there would be no basis for any compensation. The only question is whether his service-connected GERD alone, caused him not to work. Accordingly, the Board finds that the criteria for a TDIU, including on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.