Citation Nr: 1800490	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-02 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). 


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel



INTRODUCTION

The Veteran served active duty from September 1961 to September 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veteran Affair (VA) Regional Office (RO) in New York, New York.

In September 2017, the Board granted the Veteran's claim for entitlement to service connection for tinnitus and remanded the issue of TDIU in order for the RO to assign a disability rating for the Veteran's tinnitus. The case has been returned to the Board; and the TDIU claim is now ready for adjudication. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due solely to his service-connected disability alone.

CONCLUSION OF LAW

The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

A letter in November 2013 from the RO provided notice of the evidence required to substantiate the claim for a TDIU. Accordingly the Board finds that the VA met its duty to notify the Veteran.

VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in obtaining service medical records, treatment records, Social Security Administration (SSA) records, and providing medical examinations when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 

The RO obtained the Veteran's service treatment records, post-service VA treatment records, and private post service treatment records. The Board notes that the Veteran stated that he was treated at a VA medical center in February 1964. The RO requested the Veteran's records from the VA medical center the Veteran specified. The VA medical center responded that it did not have archived records of the Veteran. Upon evidence that the Veteran had pertinent records located at SSA, the RO requested the Veteran's SSA records. SSA informed VA that such records were destroyed. The Veteran was notified of the results of this search. The Veteran in response sent in a letter from SSA detailing his SSA entitlement benefit award. 

In addition, the Veteran underwent a December 2013 thoracolumbar spine examination and a December 2013 VA audiological examination, with a February 2014 addendum audiological medical opinion. These examinations are of record.  

Accordingly the Board finds that the VA has met its duty to assist the Veteran with his claim.

II. TDIU

VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (b).

Here, the Veteran is service-connected for tinnitus. His tinnitus is rated at 10 percent disabling, effective October 2012. The Veteran does not meet the schedular criteria for TDIU and his claim must be considered on an extraschedular basis. 38 C.F.R. § 4.16 (b).

The Board is precluded from awarding extraschedular TDIU under 38 C.F.R. § 4.16 (b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation and Pension Service (C&P Director) to consider entitlement on an extraschedular basis. Id. In determining whether the Veteran is unemployable, consideration may be given to education, training, and special work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The record indicates that the Veteran has completed high school and a firefighter vocational program. 

In April 2013, the Veteran stated that pain in his back forced him to completely stop work in 1995. 

In November 2013, the Veteran submitted a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran indicated that he last worked as a firefighter in 1992 and he became too disabled to work in 1993. The Veteran indicated that he was unable to secure substantially gainful employment because of his back. 

In December 2013, the Veteran had a VA thoracolumbar spine examination. The examiner noted that after service the Veteran worked in construction, as a correctional officer, and as a firefighter. The examiner noted that the Veteran had a disabling back injury in 1992.

In December 2013, the Veteran underwent an audiological examination. The Veteran reported that he had twenty plus years as a firefighter. The examiner indicated that the Veteran had no functional impairments due to his tinnitus. 

In November 2015, the Veteran stated that he was unemployable because he is unable to sit or stand for long periods and his back pain.  

The Board finds that the evidence does not support that the Veteran's tinnitus precludes him from gainful employment. While the Board notes the VA audiologist found that the Veteran had no functional impact from his tinnitus, the most probative evidence is the Veteran's consistent statements that his back condition caused him to become unemployable and not his tinnitus. As noted, above the Veteran is only service-connected for tinnitus. While tinnitus may pose difficulties with verbal communications, the evidence does not show that it causes the Veteran's unemployability. Referral for TDIU on an extraschedular basis is not warranted. 38 C.F.R. § 4.16 (b).

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Board must deny the TDIU claim. See 38 U.S.C.A. §§ 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER


Entitlement to a TDIU is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs