Citation Nr: 21023729 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-44 708 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 1, 2016, is denied. FINDING OF FACT Prior to September 1, 2016, the Veteran’s service-connected disabilities did not preclude him from obtaining or following substantially gainful employment. CONCLUSION OF LAW Prior to September 1, 2016, a TDIU due to the Veteran’s service-connected disabilities is not warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1964 to June 1968. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107 (a)(2). The Veteran’s appeal was previously before the Board in November 2018 but was remanded so the Veteran could have the opportunity to submit a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). He was provided with one in February 2019 and returned it in March 2019. The issue was before the Board again in December 2020 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the AOJ was required to obtain a letter from the Director of Compensation Services for extra-schedular consideration of entitlement to TDIU, prior to September 1, 2016. The required letter from the Director of Compensation Services was obtained and associated with the claims file in January 2021. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a TDIU due to service-connected disabilities, prior to September 1, 2016 Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to September 1, 2016, the Veteran was service connected for Asbestosis (rated at 30 percent), depression (rated at 30 percent), tinnitus (rated at 10 percent), and residuals of a stroke associated with Asbestosis (rated as noncompensable), for a combined disability rating of 60 percent. Prior to September 1, 2016, the schedular criteria for a TDIU were not met. See 38 C.F.R. § 4.16(a). However, TDIU may also be considered on an extraschedular basis. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38C.F.R. §4.16(b). In February 2018, the Veteran submitted a private medical opinion. The private doctor opined that it was “very difficult” for the Veteran to sustain any employment. The private doctor reasoned that the Veteran was easily fatigued, had restless sleep, suffered with depression, could not excise, was limited in ability to ambulate, and got short of breath. The Veteran was granted a 100 percent disability rating for asbestosis, effective September 1, 2016. Because of the February 2018 opinion, the Board remanded this claim for consideration of an extraschedular TDIU. In January 2021, the Director of the Compensation Service issued an advisory opinion regarding the Veteran’s claim for TDIU prior to September 1, 2016. The opinion stated: The Veteran has a 4-years college education with work experience as a director of facility management and operations for the county. The evidence shows the Veteran last worked full-time in 2003. We have considered lay statements, however; greater weight is given to the objective medical evidence of record. The Veteran is not in receipt of Social Security disability. There is no evidence of inability to perform sedentary employment due to [service-connected] conditions prior to September 1, 2016. The Veteran has [service-connected] conditions which could have functional impact and impair prolonged activities. As noted above, a high rating in-itself recognizes that the impairment makes it difficult to obtain and keep employment…There are many jobs in the workplace that require only light activity. In addition, technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available… The evidence fails to support the contention that any of the [service-connected] disabilities or a combination of the effects of those disabilities prevented gainful employment prior to September 1, 2016. Because the Director of the Compensation Service adjudicated this question, the Board is now permitted to exercise jurisdiction over this issue. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. Id. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U. S. Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” as having 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 following: 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. As the Veteran has been unemployed in a full-time occupation since 2003, the noneconomic component of “unable to secure and follow a substantially gainful occupation” must be addressed. In his March 2019 Application for Increased Compensation Based on Unemployability, the Veteran noted that he became too disabled to work in July 2003. The Veteran’s application also notes that he has completed 4 years of college education. The Veteran worked from 1974 to 2003 at the same company as a Director of Facility Management and Operations. The Veteran reported that since becoming too disabled to work, he has obtained employment in sales in 2010 and as an estimator in 2013. The Veteran reported that his service-connected disabilities resulted in difficulty breathing, increased blood pressure, increased cholesterol, and increased risk for heart attack. A November 2017 lay statement from the Veteran’s daughter notes that the Veteran’s service-connected disabilities caused a history of difficulty breathing and preventing the Veteran from exerting himself physically. A December 2017 statement from the Veteran reports that his health has declined for the previous four years, and that his service-connected disabilities resulted in decreased energy and inability to continue working as a part-time handyman. Conversely, in a January 2015 Respiratory Conditions examination, the examiner noted that the Veteran reported getting tired easily with physical work. The Veteran estimated that his symptoms can be mild to severe on different days. The Veteran also stated that sedentary work did not affect his breathing, but it was hard to concentrate because he was worried about his breathing. The examiner concluded that the Veteran’s breathing was affected by physical work but not sedentary work. Further, the Veteran’s existing 30 percent disability for depression is indicative of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, not an inability to obtain or follow gainful employment. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Additionally, a September 2014 VA Hearing Loss and Tinnitus examination notes that the Veteran’s tinnitus does not result in functional impairment. The probative evidence of record does not contain a medical opinion indicating that prior to September 1, 2016, the Veteran’s service-connected disabilities prevented him from being able to obtain or follow substantially gainful employment. Based on the medical evidence of record, the Board finds that the Veteran’s service-connected disabilities did not prevent him from obtaining or following substantially gainful employment, particularly in a sedentary employment position per his own report at his Respiratory Conditions examination. Although while doing sedentary employment, the Veteran stated he worried about his breathing, this is not sufficient to preclude employment in his occupational field. His previous occupation was in management, was sedentary role, as described in a February 2014 private medical record from Chest Medicine of New Mexico PC, where it was noted that he had a “[d]irectory facility management office job.” Additionally, the Veteran’s college education and work experience established his ability to obtain additional employment following his retirement in 2003 from his position as Director of Facility Management and Operations. The most probative evidence of record does not establish functional limitation severe enough to prevent the Veteran from obtaining or following employment consistent with his occupational history in a management job and college education. Accordingly, entitlement to a TDIU, prior to September 1, 2016, is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.