Citation Nr: 1330975 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-04 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from November 1955 to August 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extra-schedular basis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision below, the Board grants entitlement to a TDIU, and therefore the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. LAW AND ANALYSIS Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension (C&P) Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, C&P Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, C&P Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board. Moreover, where there has been a review by the C&P Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet. App. 423, 277-28 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). In determining whether a claimant is unable to secure or follow a substantially gainful occupation, 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities are bilateral hearing loss, rated as 40 percent disabling and tinnitus, rated as 10 percent disabling. His combined evaluation for compensation is 50 percent. Therefore, the percentage requirements for consideration of his claim under section 4.16(a) have not been met, and the Board must consider whether this appeal warrants further extra-schedular consideration by the Director, C&P Service, under section 4.16(b). With regard to the latter, the Board notes that the RO already referred this case to the C&P Director, and his Memorandum is in the claims file. In applying for a TDIU rating, the Veteran contends, in effect, that his service-connected bilateral hearing loss disability renders him "unable to secure and follow a substantially gainful occupation." 38 C.F.R. § 4.16(b). The record establishes that the Veteran last worked in September 2008, when he was employed as a van driver. In March 2009 correspondence, the Veteran reported that "driving is all that I have done both in the military and civilian life. " In his VA Form 21-8940, the Veteran cited to working as a bus/van driver for his past three employers and that he stopped working in September 2008 because he could not renew his commercial driver's license (CDL) due to his hearing loss disability. He also reported completing four years of high school with no other training or technical expertise. In a VA Form 21-4192, the Veteran's last employer noted that the Veteran worked as a van driver from November 2006 to September 2008. It was noted that the Veteran was terminated because he could not pass his hearing test. In March 2009 correspondence, a private physician noted that he was unable to certify the Veteran for a CDL license secondary to hearing loss. Results from an April 2010 VA audiological test confirmed and continued a 40 percent evaluation for the service-connected bilateral hearing loss. The examiner noted the Veteran's occupational history that he worked as a truck driver for 32 years. The examiner concluded that the hearing loss and tinnitus had a significant effect on the Veteran's occupation. In June 2010, the RO requested that the Director of Compensation and Pension Service consider granting a TDIU on an extraschedular basis, citing the medical findings which included a 40 percent evaluation for bilateral hearing loss; noting that the Veteran had not been employed since 2008 because he was unable to pass the physical to get his CDL license due to his hearing loss; and that the Veteran had a 12th grade education with no other training. Given the nature of the Veteran's disability and his level of education and training, the RO recommended that a TDIU be granted on an extraschedular basis under 38 C.F.R. § 4.16(b). A subsequent memorandum from the Director of the VA Compensation and Pension Service found that the Veteran was not entitled to TDIU on an extra-schedular basis. The memorandum noted that while the evidence does demonstrate that the Veteran's service-connected conditions prevent him from working as a commercial driver, none of the evidence demonstrates that the Veteran is unable to engage in any type of work. After review of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected bilateral hearing loss as he is precluded from performing gainful employment for which his education and occupational experience would otherwise qualify him. The Board acknowledges the opinion of the Director of Compensation and Pension that the Veteran does not meet the extra-schedular requirements for a TDIU. However, the Board notes that the opinion did not take into account the Veteran's limited educational and industrial background. As noted above, the restrictions placed on the Veteran by his hearing loss disability severely limit his employment options, especially with consideration of his background which is limited to a 12th grade education and prior work experience in the past decade exclusively as a van/bus driver and as a truck driver for 32 years. With consideration of all the evidence of record, the Board finds that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. The Board concludes that entitlement to a TDIU on an extra-schedular basis is warranted. ORDER Entitlement to a TDIU on an extra-schedular basis is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs