Citation Nr: 21032247 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-43 957 DATE: May 26, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1958 to April 1962 and from July 1968 to March 1970. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript from the hearing has been associated with the claims file. In May 2018, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) to refer the claim to the Director of VA's Compensation and Pension Service for consideration of entitlement to TDIU. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran contends that his service-connected disabilities prevent him from maintaining substantially gainful employment. 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. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "Substantially gainful employment" contains economic and noneconomic components. 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," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU 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 a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of a 10 percent disability rating for bilateral hearing loss, and a noncompensable (zero percent) rating for asbestos-related pleural plaques. The Veteran has a combined disability rating of 10 percent. Although the Veteran's service-connected disabilities do not meet the threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the schedular ratings. 38 C.F.R. § 4.16(b). However, the Board has no authority to award TDIU under § 4.16(b) in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director's decision is the same as the AOJ's as far as the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). In January 2021, the Director of Compensation conducted an administrative review of the record and addressed whether a TDIU was warranted on an extraschedular basis with consideration of both service-connected disabilities. The Director determined 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 prevent employment. The Board notes that in Wages v. McDonald, 27 Vet. App. 233 (2015), the Court of Veterans Appeals (the Court) held that, because the decision of the Director of Compensation Services decision on a specific case as to entitlement to an extraschedular TDIU rating is "in essence the de facto [AOJ] decision", it does not constitute evidence, i.e., in the form of opinion evidence. As such, the decision is not entitled to probative value to be weighed against other evidence of record. Therefore, the Board does not attribute any particular evidentiary weight to the Director's January 2021 memorandum. In his March 2014 Form 9, the Veteran stated his belief that he should receive TDIU if he is found service-connected for his claimed conditions. At a March 2016 VA audiological examination, the examiner found that the Veteran's hearing loss would not impact ordinary conditions of daily life, including ability to work. At a July 2016 VA respiratory examination, the examiner found that the Veteran's respiratory condition would not impact his ability to work. In February 2015 and March 2016, VA provided the Veteran with a blank VA Form 21-8940, Application for Individual Unemployability, and instructed the Veteran to complete the form to in application for TDIU. However, no completed VA Form 21-8940 has yet been received. At the March 2018 Board hearing, the Veteran indicated that he stopped working in 2015. He also reported that he had a high school education and 2 years of college education, and that his work history included working as a boilermaker and a custodian. The Veteran testified that he was unable to hear instructions or the sound of machinery at work, which would prevent him from being able to work. At a May 2018 VA audiology examination, the Veteran reported that his hearing loss impacts his activities of daily life in that he misunderstands family and has difficulty talking on the phone. Based upon review of the evidence, the Board finds that the record does not demonstrate total occupational impairment since July 2015, the date the Veteran indicated he stopped working. The record does not contain any VA or private medical opinions that the Veteran would be unable to work due to his hearing or respiratory conditions. The evidence does not show that the Veteran's service-connected disabilities would preclude an occupation which does not require the ability to hear. In Ray v. Wilkie, 31 Vet. App. 58, the Court found that in cases where the Board has previously referred the issue of entitlement to a TDIU on an extraschedular basis to VA's Director of Compensation Services, the Board's obligation to provide an adequate statement of reasons and bases to support its decision extends to the Board's review of the Director's decision not to grant an extraschedular TDIU. In that regard, the Board must explain why the factual finding it made at the referral stage differs from its ultimate determination that a TDIU is not warranted. In the present case, the Board's May 2018 remand does not contain any particular factual findings to support its determination that the case should be referred to the Director of Compensation Services for extraschedular consideration other than to provide a summary of the relevant evidence and to note that the Board does not have jurisdiction to assign an extraschedular TDIU rating in the first instance. The Board restated the Veteran's claim that he cannot work due to his hearing loss, but the Board did not make any factual conclusions regarding that matter. Thus, in referring the case for extraschedular consideration, neither the Board nor the AOJ made factual findings that are contrary to the factual finding made in this decision that the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected audiological or respiratory disabilities. Based on the foregoing evidence, the Board finds that the Veteran's service- connected audiological and respiratory disabilities do not prevent him from obtaining and maintaining substantially gainful employment. The Board acknowledges the Veteran's assertion that he is unemployable due to his hearing loss. However, while the Veteran's hearing loss would have an impact on his occupational activities, the evidence shows that the severity of the Veteran's conditions would not preclude gainful employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Board is cognizant that the Veteran would have occupational difficulty due to his hearing loss, the preponderance of the evidence of record demonstrates that the Veteran is not precluded from securing and following substantially gainful employment due to his service-connected conditions. The fact that a veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. After reviewing all the evidence of record and considering the Veteran's education and work history, the Board concludes that the preponderance of the evidence does not show that the Veteran would be unable to obtain or maintain substantially gainful work due to his service-connected disabilities. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.