Citation Nr: 21025754 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-21 772 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected asthma, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for the assignment of a TDIU and his service-connected asthma alone does not render him unable to secure or follow any form of substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from March 1983 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in September 2020, at which time the issue on appeal was remanded for additional development. The matter has since been returned to the Board for appellate review. The Veteran has reported that his service-connected asthma has prevented him from securing or following any substantial gainful occupation. From March 3, 2014, the Veteran has been service-connected for his asthma alone, rated as 30 percent disabling. Prior to March 3, 2014, his service-connected asthma was noncompensable. Because the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for the assignment of a TDIU, the matter was referred to the Director of VA’s Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). Additionally, the Veteran reported that he became too disabled to work as a forklift operator in August 2013. In this regard, his service-connected asthma and additional nonservice-connected disabilities prevented him from obtaining and maintaining any form of gainful employment consistent with his high school education and occupational experience. On his Social Security Administration (SSA) benefits application, he explained that he stopped working as a forklift operator because he could not operate the forklift or pick-up things due to his nonservice-connected back pain, diabetes, carpal tunnel syndrome, nerve condition, leg pain, and eye condition. Prior to his retirement in August 2013, the Veteran held numerous jobs as a floor technician, housekeeping supervisor, warehouse worker, shipping manger, store manager, customer service representative, shipping and receiving personnel, and cashier. He testified that his previous jobs required lifting and carrying, and exposed him to chemicals. He stated that he was less productive because he would tire easily, sometimes needed to seek emergency treatment, and failed to report to work. He added that physical activity impacted his overall productivity. In August 2014, the Veteran reported that his shortness of breath was triggered by cold weather, perfume, or cigarette smoke. On average, he stated that he used an inhaler four days a week and every six hours on most of those days. He related that he visited the emergency room (ER) four times in the last twelve months for exacerbation of his asthma. However, a VA examiner indicated that the Veteran’s asthma did not impact his ability to work. At a February 2017 VA examination, the Veteran reported that he had shortness of breath daily, with change of weather and triggered by the smell of perfume. He visited the ER in the past year for shortness of breath and breathing treatments. The examiner noted that the Veteran’s asthma may impact his ability to perform manual work. In a November 2020 advisory opinion, the Director determined that an extraschedular rating was not warranted. In this regard, the Director took notice that the SSA determined that the Veteran had multiple physical conditions, including asthma, that limited him, but did not render him incapable of all work activities. The Director conceded that the Veteran’s service-connected asthma caused functional limitations. However, the Director found that the cumulative evidence did not reflect that the Veteran was unable to obtain or maintain gainful employment due to his service-connected asthma alone. Instead, the Director found that additional nonservice-connected physical disabilities contributed to the Veteran’s current inability to obtain/maintain substantially gainful work activity. Based on the subjective report of the Veteran, and the objective findings in the VA examination reports and November 2020 VA advisory opinion, the Board finds that the Veteran’s service-connected asthma alone does not render him unemployable. According to SSA records, the Veteran attributed his decision to stop working in August 2013 as solely due to the functional limits of his nonservice-connected disabilities, without mention of his asthma. While the Board finds that the Veteran’s ability to perform physical tasks is a critical function of his previous work, VA examination reports do not show that his asthma would preclude other forms of employment. Additionally, the Veteran’s employment history is somewhat varied, and there is no indication from the record that his asthma would preclude employment consistent with his industrial history. In light of the Veteran’s employment history and functional limitations described above, there is no indication that the Veteran’s asthma prevented all types of employment consistent with his education and skills. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to TDIU, to include on an extraschedular basis, is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.