Citation Nr: 21021065 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-07 349 DATE: April 9, 2021 ORDER From November 16, 2010 to December 19, 2011, a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT From November 16, 2010 to December 19, 2011, the Veteran’s only service-connected disability of foreign object in the left hilar area with associated hemoptysis did not prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW From November 16, 2010 to December 19, 2011, the criteria for entitlement to a TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to August 1992. In March 2019, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In September 2019, the Board remanded the issues of entitlement to initial rating for foreign object in the left hilar area with associated hemoptysis and entitlement to a TDIU. Subsequent to the Board’s remand, in an October 2020 rating decision, the RO increased the rating for foreign object in the left hilar area with associated hemoptysis to 30 percent effective April 9, 2018. The rating decision also granted entitlement to a TDIU effective December 19, 2011, the date he met the schedular criteria for a TDIU. In a December 2020 decision, the Board granted an initial 50 percent rating for foreign object in the left hilar area with associated hemoptysis and remanded the issue of entitlement to a TDIU on extraschedular basis from November 16, 2010, to December 19, 2011. Entitlement to a TDIU The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment from November 16, 2010, to December 19, 2011, as relevant here. On his September 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated that all of his disabilities prevented him from maintaining gainful occupation beginning October 12, 2011. The Veteran is in receipt of a TDIU beginning December 19, 2011. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Here, in a February 2021 Memorandum, a Director of Compensation Service determined that the evidence did not support entitlement to a TDIU on an extraschedular basis. Nonetheless, although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: The veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis From November 16, 2010 to December 19, 2011, the Veteran’s only service-connected disability is foreign object in the left hilar area with associated hemoptysis rated as 50 percent disabling and accordingly, he did not meet the minimum schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU in this case is on an extraschedular basis. See 38 C.F.R. § 4.16(b). On review, the Board finds that an award of an extraschedular TDIU is not warranted. A review of the evidence from November 16, 2010 to December 19, 2011, does not show that he was unable to maintain a gainful occupation due solely to the only service-connected disability at the time, namely, foreign object in the left hilar area with associated hemoptysis. First, the Veteran has indicated that he stopped working on October 12, 2011; as he was gainfully employed until October 12, 2011, an award of a TDIU prior to October 12, 2011, is not indicated. Moreover, the only relevant medical record prior to December 2011 indicates that the Veteran should not work or operate heavy machinery while taking Hydrocodone for pain; however, there is no indication that this medication was prescribed for the service-connected foreign object in the left hilar area with associated hemoptysis. Significantly, the remaining private and VA treatment records do not show that the Veteran was unable to work due to his only service-connected disability at the time. Accordingly, entitlement to a TDIU on extraschedular basis for the rating period prior to December 19, 2011, is not warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.