Citation Nr: 25004512 Decision Date: 04/02/25 Archive Date: 04/02/25 DOCKET NO. 18-52 997 DATE: April 2, 2025 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, on an extraschedular basis, prior to July 3, 2014, is denied. FINDING OF FACT Prior to July 3, 2014, the Veteran does not meet the schedular criteria for assignment of a TDIU and the evidence weights persuasively against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Prior to July 3, 2014, the criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.16(b) (2024). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1986 to February 1990, and from January 2000 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The present issue was most recently remanded by the Board in November 2023, for additional development; to include obtaining addendum medical opinions and for referral to VA's Director of Compensation Service. The issue of entitlement to a TDIU, prior to July 3, 2014, has now been returned to the Board for further appellate action. Entitlement to a TDIU rating on an extraschedular basis prior to July 3, 2014. The Board notes that as of July 3, 2014, the Veteran is in receipt of a 100 percent rating for his service-connected generalized anxiety disorder. Accordingly, the issue on appeal, as previously adjudicated, considers the period prior to that date. Prior to July 3, 2014, the Veteran has a total combined rating of 30 percent from August 18, 2011. That combined rating consists of the following service-connected disabilities and corresponding disability evaluations: pinguecula with keratoconjunctivitis (claimed as vision problems), 10 percent; tinnitus, 10 percent; muscle injury post-10th rib resection, 10 percent; right foot fracture, 0 percent; scar of the anterior trunk associated with muscle injury, 0 percent. When percentage standards for consideration of TDIU on a schedular basis are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.341, 3.341, 4.16, 4.19. During the most recent adjudication of the Veteran's claim before the Board, it was found that the record warranted referral for consideration for a TDIU based upon an August 2013 VA examination, which noted that the Veteran's service-connected right foot fracture residuals impacted his ability to work as the Veteran reported being unable to walk more than one block and unable to stand for more than 10 minutes. See November 2023, Board Decision (citing August 2013, VA Examination Report). In January 2025, the Director of Compensation Services rendered an advisory opinion. See January 2025, VA Memorandum. As the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board now has jurisdiction to address the merits of that claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). As indicated, prior to July 3, 2014, the Veteran did not have a combined rating of at least 70 percent, with one disability rated at 40 percent or more. Pursuant to the Board's November 2023 remand, the agency of original jurisdiction (AOJ) attempted to schedule the Veteran for examinations in order to render medical opinions as to the combined effects of the severity of the aforenoted disabilities on the Veteran's ability to work prior to July 3, 2014. See December 2023, Exam Request. In December 2023, the Veteran contacted the AOJ, requesting that medical opinions be rendered based upon review of the record as opposed to in-person examinations, as traveling to the examination locations presented numerous challenges. See December 2023, VA Form 27-0820. Turning to the evidence of record, a retrospective opinion concerning the Veteran's eye disability was obtained in June 2024. See June 2024, VA Examination Report. The examining ophthalmologist provided a thorough and detailed review of the Veteran's eye disability, service-connected as pinguecula with keratoconjunctivitis, with a 10 percent rating from March 9, 2010. In referencing treatment records from January 2008, December 2011, and March 2012, it was noted that the Veteran had normal vision and no ocular complaints. Although the January 2008 ophthalmologic examination revealed a white bump on the left conjunctiva, medially with no inflammation or keratoconjunctivitis, it was determined as being not clinically significant. Additional ophthalmologic treatment was rendered in January 2013 because the Veteran had a pic line inserted which was positive for fungemia. The Veteran reported blurry vision at that time, but there were no complaints of redness, irritation, eye pain, or floaters. Ocular examination was normal, with no signs of diabetic retinopathy and no fungal endophthalmitis. There was no report or mention of pinguecula, pingueculitis, or keratoconjunctivitis, nor were there complaints consistent with any symptoms thereof. In August 2013, the Veteran underwent an ophthalmologic examination. The report reflects that there were no complaints of pain or discomfort. Mild pinguecula was observed in both eyes, with the left eye lesion larger than the right, but not causing any visual impairment or any observable symptoms. The examiner provided an opinion that the condition had no effect on the Veteran's ability to work. In the June 2024 examination report, based upon a review of the records, the examiner also detailed the findings of additional ophthalmologic examinations of record between 2019 and 2023. Those reports reveal an absence of symptomatic pinguecula, pingueculitis, or keratoconjunctivitis. Overall, the June 2024 ophthalmologist found that the Veteran's service-connected eye condition of pinguecula has remained asymptomatic. The examiner described that the disability presents with benign findings in the eyes, occurring due to sunlight exposure, which, at times, may become inflamed and present with redness and irritation. However, based upon a thorough review of the Veteran's record, it was opined that the condition has not caused any restrictions on the Veteran's ability to perform job-related activities. See June 2024, VA Examination Report. Likewise, a June 2024 VA examination report was obtained from an audiologist, providing an opinion concerning the impact of the Veteran's service-connected tinnitus disability on his ability to obtain and maintain substantially gainful employment. Upon a review of the record, the audiologist opined that the Veteran's tinnitus would have no negative impact on the Veteran's ability to perform job-related activities. A retrospective opinion was also obtained for consideration of the Veteran's service-connected right foot and muscle injury disabilities. See November 2024, VA Examination Report. Based upon the Veteran's prior reporting, treatment records, and previous VA examination reports, the November 2024 examiner opined that the service-connected left anterior trunk muscle injury, with scar, would not have interfered with the Veteran's ability to perform job duties, and therefore, would not have caused any restrictions or limitations. Id. As to the Veteran's right foot disability, it was opined that due to reports of pain and decreased weight-bearing ability as a result, occupational tasks such as prolonged walking, running, and standing may have been limited, thus interfering with the Veteran's ability to perform tasks requiring such duties. Id. Turning to the additional evidence of record, in the May 2014, VA Form 21-8940, the Veteran cited to the Social Security Administration's (SSA) favorable decision on disability as the basis for his claim for entitlement to TDIU. As in this case, SSA regulations provide for consideration of disabilities which are not service connected in addition to other factors which are not to be considered by the VA, such as advanced age and its impact on employability. See 20 C.F.R. § 404.1560(c), 404.1566, 416.960(c), and 416.966. The Board may, however, refer to those pertinent medical findings and documents within the Veteran's SSA file in consideration of a claim for benefits. The Board has considered the SSA records, which confirm that the Veteran was found disabled by reason of severe pancreatitis. See May 2013, SSA Decision (associated with the claims file in May 2014). As is relevant here, the medical opinion rendered within the SSA claims file, reveals that the Veteran's favorable SSA disability determination not only considered the nonservice-connected pancreatitis disability, but also took into account the Veteran's age, a factor which is not for consideration in a VA claim for TDIU. In sum, an SSA determination of disability is not dispositive of a claim for TDIU or binding on the VA. It is noted that the AOJ attempted to obtain additional information concerning the Veteran's claim on several prior occasions, however, the Veteran declined to comply with those requests. Pursuant to the Board's June 2020 remand directives, the Veteran was requested to complete an updated VA Form 21-8940 but failed to do so. In addition, a VA examination was scheduled for evaluation of his foot and ankle in May 2021, however, the Veteran canceled the examinations and requested that opinions be rendered based upon the record, without further explanation. VA treatment records reveal that the Veteran reported to treating physicians on several occasions that he stays busy completing tasks on his active working farm. See 2018, VA Treatment Records. In the May 2014, VA Form 21-8940, the Veteran reported previously working in a self-employed capacity, from 2004 to 2010 as an electrician. SSA records reflect that the Veteran also worked from October 1997 to October 2001, as a communications technician and received post-secondary training and education, however, the specific details of that training and education have not been provided by the Veteran. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). The Veteran has not done so in this case. Moreover, the Board finds that the limitations identified above which result from the Veteran's service-connected disabilities prior to July 3, 2014, do not render him unable to secure or follow substantially gainful employment. In this regard, the record demonstrates that the Veteran's service-connected disabilities do not relegate him to only sedentary work. In addition, he has experience and training beyond physical skills which would afford him additional employment opportunities beyond physically demanding positions. While the Board sympathizes with the Veteran's physical ailments prior to July 3, 2014, the severe pancreatitis and resulting surgical interventions are not service-connected, and therefore, are not part of the consideration for the claim of TDIU. (Continued on the next page) ? Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to a TDIU prior to July 3, 2014, to include on an extraschedular basis, if not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sutherell, Erienne 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.