Citation Nr: 21029763 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-23 758 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran does not meet the schedular criteria for assignment of a TDIU, and his service-connected disabilities alone do not render him unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from December 1969 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, 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, most recently in September 2019, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. A review of the record shows that the Veteran is service-connected for post-operative vagotomy and pyloroplasty secondary to peptic ulcer disease, and left ear hearing loss disability. His combined rating for the entire period on appeal has been 40 percent. As such, the Veteran does not meet the schedular criteria for assignment of a TDIU. However, a TDIU may be granted on an extraschedular basis if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. 38 C.F.R. § 4.16. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to obtain and maintain substantially gainful employment. 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 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). 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). Additionally, 38 C.F.R. § 4.16(b) has 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. Ray v. Wilkie, 31 Vet. App. 58 (2019). In September 2019, the Board remanded this matter to the Director of Compensation Service for extraschedular consideration. Following a review of the evidence of record, the Director of Compensation Service denied assignment of the extraschedular TDIU in November 2020. The Director specifically noted that the evidence did not show that the Veteran's service-connected disabilities caused a severe economic effect on his ability to maintain gainful employment. As the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director of Compensation Service, the Board now has jurisdiction to address the merits of the Veteran's claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). A review of the record shows that the Veteran has not submitted the appropriate VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. As such, the Board does not have specific information regarding the Veteran's education and industrial history. In March 2019, the Veteran was sent an additional development letter that specifically requested he submit a fully completed VA Form 21-8940. The Veteran did not reply, and the requested information was not submitted. However, at his hearing in April 2018, the Veteran did provide some information regarding his employment history. At that time, the Veteran reported that he had worked for 26 years as a member of the Mississippi Department of Corrections, and was an operations supervisor before he stopped working. He reported that he stopped working in 2004. When his attorney questioned as to whether he could go back to work in his old job if it were offered, the Veteran reported that he could not, and indicated that his inability to do so would be a result of his nonservice-connected back disability. However, the Veteran did testify that his service-connected peptic ulcer disability sometimes caused digestion issues at work, particularly during times of stress, but he was able to alleviate his symptoms at work by taking over-the-counter medication, watching his diet, and avoiding strenuous activity. In a June 2012 VA examination report, the examiner noted that the Veteran's peptic ulcer disability would impact his ability to work, in that he would experience increased absenteeism during severe symptoms. According to that examination, the Veteran had severe episodes four or more times per year, that lasted between one and nine days at a time. The Veteran reported recurrent nausea and mild vomiting. In a July 2012 VA audiology evaluation report, the examiner noted that the Veteran's left ear hearing loss disability would impact his ability to work in that he had difficulty hearing speech in the presence of background noise, and sometimes speech was not clear. In an April 2019 VA audiology evaluation report, the examiner noted that the Veteran's left ear hearing loss disability impacted his ability to work in that the Veteran reported having difficulty understanding conversational speech because he often got words that people said confused or mixed-up. The Veteran was scheduled for an additional VA examination for his peptic ulcer disability in April 2019. However, the Veteran failed to report for that examination without explanation. The Veteran was informed of his failure to report in a supplemental statement of the case issued in May 2019. The Veteran's attorney asserted in a December 2020 VA Form 9 that the Veteran's disabilities had gotten worse, and that he was entitled to a TDIU. However, details regarding the increase in severity and their impact on the Veteran's ability to work were not included in that statement. The Board emphasizes that consideration for a TDIU must be based solely on the impairment caused by a service-connected disability. In this case, while the impairment caused by the Veteran's peptic ulcer disability and left ear hearing loss has obviously caused problems in his day to day life, and does impact his ability to work a physical job, there is nothing in the Veteran's record that indicates that he would be totally unable to obtain and maintain any type of gainful employment as a result of his peptic ulcer disability and left ear hearing loss alone. Rather, based on the Veteran's own statements, it appears that the primary impetus behind his decision to leave his employment with the Department of Corrections was that he could no longer perform the physical requirements of his job as a result of nonservice-connected back disability. As noted, the Board acknowledges that the Veteran's peptic ulcer disability and left ear hearing loss disability would have some impact on his ability to work. However, there is no indication from the record that the Veteran would be unable to perform some type of employment even when considering the symptoms of those disabilities. Specifically, at his April 2018 hearing, the Veteran reported that he worked as an operations supervisor with the Department of Corrections. That indicates that the Veteran has some level of supervisory experience, which would entail skills that could be transferable to another, less strenuous and stressful position. Additionally, the Veteran himself reported that he was able to manage the symptoms of his peptic ulcer disability at work with over-the-counter medication and avoiding strenuous work. As such, it seems that the Veteran would be capable of performing employment in a more sedentary environment, and there is an indication that he has the skillset to be capable of such employment given his industrial experience. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU 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. Andrew Ledman II 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.