Citation Nr: 1801395 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-08 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from November 1977 to October 1981, and in the Army from April 1986 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, the Board determined that the issue of entitlement to a TDIU had been raised by the record, and remanded the matter so the Veteran could be provided the appropriate notice pursuant to 38 U.S.C. § 5103(a) (2012) and 38 C.F.R. § 3.159(b) (2017). FINDINGS OF FACT 1. The Veteran is service-connected for residuals of laminectomy and discectomy L5-S1 with degenerative disc disease (DDD) and degenerative joint disease (DJD) without radiculopathy (rated as 10-percent disabling); tinnitus (rated as 10-percent disabling); residuals of recurrent right ankle sprains (rated as 10-percent disabling); and hearing loss in the left ear, status post modified radical mastoidectomy and tympanoplasty (rated as noncompensable). His combined disability rating is 30 percent. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his service-connected disabilities render him unemployable. For the following reasons, the Board finds that the claim for a TDIU must be denied. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 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 in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60-percent disability, or one 40-percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. 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 circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA 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 Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of "performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is currently in receipt of service connection for residuals of laminectomy and discectomy L5-S1 with DDD and DJD without radiculopathy (rated as 10-percent disabling); tinnitus (rated as 10-percent disabling); residuals of recurrent right ankle sprains (rated as 10-percent disabling); and hearing loss in the left ear, status post modified radical mastoidectomy and tympanoplasty (rated as noncompensable). His combined rating for these disabilities is 30 percent. Consequently, he is not eligible for a TDIU on a schedular basis, and therefore the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b) ("It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."). At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and 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 of Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). After carefully reviewing the evidence, the Board finds that the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities have not rendered him unemployable at any point during the appeal period. In May 2009, the Veteran underwent VA audiological and joint examinations during which he reported that he worked as a contractor at Pensacola Naval Air Station. He noted that his job required lifting, climbing, and bending, all of which aggravated his service-connected back and right ankle disabilities. The audiologist noted that the Veteran's hearing loss had "significant effects" on his occupation as it caused hearing difficulty. In February 2012, the Veteran underwent VA ankle, back, and audiological examinations during which he reported that he was employed as a building maintenance worker. With respect to his right ankle disability, the Veteran indicated that the condition impacted his ability to work in that it sometimes prevented him from climbing. No functional impact was noted regarding his back disability or tinnitus. Regarding hearing loss, the Veteran stated that he had difficulty hearing his co-workers on the job. In January 2015, the Veteran underwent a VA audiological examination during which he reported that he "can't hear conversations." The examiner indicated that the Veteran's hearing loss was such that he required amplification in order to function in most situations. The examiner opined that, based on his hearing impairment, the Veteran "would be expected to have significant difficulty working in a situation that requires verbal communication in noisy areas, or in a job which requires communication over a telephone, radio, or intercom systems for large portions of the day." No functional impact was noted regarding the Veteran's tinnitus. The Board has reviewed the Veteran's VA outpatient records; none are pertinent to his application for a TDIU. In June 2017, pursuant to the Board's remand directives, VA mailed the Veteran notice of the type of information needed to substantiate his claim. To date, he has not provided any of the requested information. Additionally, in June 2017, the AOJ inquired with a Vocational Rehabilitation and Employment (VR&E) specialist regarding the outcome of the Veteran's application for VR&E in the 1990s. A July 2017 email response indicates that the physical file was destroyed, but that the Veteran entered the program in 1999, was declared job ready later that year, and that his case was closed in 2000. On review, the Board finds that the preponderance of the evidence demonstrates that the criteria for referral of the Veteran's claim for consideration of an extraschedular TDIU have not been met. The Veteran has never asserted that he is unable to work or even that he is unemployed, much less that he is unemployable due to his service-connected disabilities. Rather, the record shows that he has been employed as a contractor and building maintenance worker throughout the appeal period. As noted above, RO mailed the Veteran notice of the evidence required to substantiate entitlement to a TDIU, and he has not responded. The Board notes that the duty to assist in the development of evidence pertinent to a claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential to substantiate his claim. See id. The Board reiterates that the crucial question is whether the Veteran's service-connected disabilities render him incapable of "performing the physical and mental acts required" to be employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, there is no credible evidence demonstrating that the Veteran's back or right ankle disabilities, hearing loss, or tinnitus, either collectively or individually, have met this threshold. The Board accepts that these disabilities have some occupational impact. The Board recognizes, for instance, that the Veteran's hearing loss, as explained by the January 2015 VA audiologist, has caused him "significant difficulty" conversing in noisy environments, and that his ankle and back disabilities impair his mobility. Notwithstanding these findings, however, there is simply no credible evidence to suggest that these disabilities have rendered the Veteran incapable of "performing the physical and mental acts required" to be employed. See id. In sum, the evidence deemed most probative by the Board establishes that the Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation at any time during the appeal period. Therefore, referral for consideration of a TDIU on an extraschedular basis is not warranted, and the claim must be denied. ORDER Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs