Citation Nr: 1804667	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  03-30 151	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial compensable rating for bilateral hearing loss. 

2.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to August 19, 2010.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran, his wife, his daughter




ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel


INTRODUCTION

The Veteran had active duty service in the United States Army from January 1964 to December 1966; from December 1990 to April 1991; and from October 1992 to September 1993.  He also served in the Texas Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In May 2007 the Veteran testified by videoconference from the Oakland RO before a Veterans Law Judge (VLJ) sitting in Washington, D.C.  A transcript of that hearing is of record.  That VLJ remanded the case in August 2007 and February 2009.  Thereafter, he retired and in February 2012, the Board remanded the appeals for scheduling of a new Board hearing as the Veteran had requested.

In January 2015, the Veteran testified by videoconference from the Sacramento RO before the undersigned VLJ sitting in Washington, D.C.  A transcript of that hearing is of record.

In a March 2015 decision/remand, the Board denied the Veteran's claim for an initial compensable rating for his bilateral hearing loss, denied a claim for a disability rating higher than 20 percent prior to May 30, 2009, for lumbosacral strain, granted a 40 percent disability rating effective May 30, 2009, and remanded the issue of entitlement to a TDIU for further development.  The Veteran appealed the portion of the March 2015 Board decision pertaining to his bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a February 2016 Joint Motion for Remand (JMR), the Court vacated the March 2015 Board decision and remanded the matter for compliance with the terms of the JMR.  The portion of the March 2015 Board decision pertaining to lumbosacral strain was not disturbed.  

Since the Board's decision, the Veteran has been awarded service connection for additional disabilities and assigned a 100 percent schedular disability rating with increased special monthly compensation paid at the housebound rate, effective from August 2010, essentially rendering the TDIU issue moot for the period after August 2010.  Entitlement to TDIU benefits prior to that date must still be considered.  

In April 2016, the Board remanded the issues on appeal to consider additional medical records not previously considered by the RO.  All necessary development having been accomplished, the claims are properly before the Board.  Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's hearing loss has manifested, at its worst, Level III hearing impairment in the left ear and Level II in the right ear. 

2.  Prior to August 19, 2010, the Veteran's combined schedular disability evaluation was 40 percent from October 29, 1999, and 60 percent disabling from May 30, 2009.

3. A June 2015 rating decision granted service connection for post-traumatic stress disorder (PTSD) at 100 percent disabling, effective August 19, 2010. 

4.  Prior to August 19, 2010, the Veteran's service-connected disabilities alone did not prevent him from engaging in substantially gainful employment. 





CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017).

2.  The criteria for an award of an extraschedular TDIU prior to August 19, 2010, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

I.  Bilateral Hearing Loss

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.

In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.  Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical.  38 C.F.R. § 4.86(b).  That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately.  Id.

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007),  the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id.

By way of background, service connection for bilateral hearing loss was established, effective October 29, 1999.  The RO assigned an initial noncompensable rating pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100.  Subsequently, the Veteran submitted a timely Notice of Disagreement in December 2002.

In connection with his claim, the Veteran underwent VA examinations in July 2000, April 2006, and May 2009.  At the July 2000 examination, the audiogram revealed the following puretone thresholds, in decibels:
 



HERTZ



500
1000
2000
3000
4000
LEFT
15
15
25
65
80
RIGHT
10
20
20
50
60

The puretone threshold average was 46.25 in the left ear and 37.5 in the right ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 96 percent in the left ear and 98 percent in the right ear.  These audiometry test results equate to Level I in the left ear and Level I in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating.  38 C.F.R. § 4.85, Table VII.  

At an October 2003 VA appointment with an audiologist, an audiogram revealed average puretone thresholds of 51 decibels in the left ear and 25 decibels in the right ear.  Speech recognition scores were 84 percent in the left ear and 92 percent in the right ear.  These audiometry results equate to Level II impairment in the left ear and Level I impairment in the right ear.  Applying these levels to Table VII, the Veteran's acuity equated to a noncompensable rating.  Id.  The Veteran was referred for hearing aids based on the results of the examination.  

Another audiology consult in November 2004 found average puretone thresholds of 55 decibels in the left ear and 29 decibels in the right ear.  Speech recognition scores were 94 percent in the left ear and 88 percent in the right ear.  These results correspond to Level I impairment in the left ear and Level II impairment in the right ear.  Applying these levels to Table VII, the Veteran's acuity equated to a noncompensable rating.  Id.  

At the April 2006 VA examination, the audiogram revealed the following puretone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
LEFT
15
15
45
80
90
RIGHT
10
10
25
55
60

The puretone threshold average was 57.5 in the left ear and 37.5 in the right ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 92 percent in the left ear and 92 percent in the right ear.  These audiometry test results equate to Level II in the left ear and Level I in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating.  

At the May 2009 VA examination, the audiogram revealed the following puretone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
LEFT
5
15
45
80
90
RIGHT
10
5
30
55
80

The puretone threshold average was 57.5 in the left ear and 42.5 in the right ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 96 percent in the left ear and 92 percent in the right ear.  These audiometry test results equate to Level II in the left ear and Level I in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating.  

A March 2014 VA audiology clinic appointment recorded normal hearing through 1500 Hz and precipitous moderate degree high frequency sensorineural hearing loss.  Word recognition was 92 percent in the left ear and 96 percent in the right ear.  No significant shift in hearing was observed since the Veteran's last test.

In November 2015, a contracted hearing loss Disability Benefits Questionnaire (DBQ) was completed.  The Veteran reported that he did not hear most of what people say if it is not quiet and that he worried he missed things.  The audiogram revealed the following puretone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
LEFT
5
10
60
80
85
RIGHT
5
10
40
65
85

The puretone threshold average was 58.75 in the left ear and 50 in the right ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 88 percent in the left ear and 96 percent in the right ear.  These audiometry test results equate to Level III in the left ear and Level I in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating.  

Another contracted hearing loss DBQ was completed in March 2016.  The Veteran reported that it was hard for him to hear especially with ambient noise and that he often asked people to repeat themselves.  He stated he stopped working as an EMT-Paramedic because it was difficult to hear patients and coworkers.  The audiogram revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
LEFT
15
20
65
90
100
RIGHT
10
15
50
60
75

The puretone threshold average was 68.75 in the left ear and 50 in the right ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 96 percent in the left ear and 96 percent in the right ear.  These audiometry test results equate to Level II in the left ear and Level I in the right ear.  38 C.F.R. § 4.85, Table VI.  Applying these levels to Table VII, the Veteran's hearing acuity equated to a noncompensable disability rating.  

A VA treatment record from September 2016 indicated there had been no change in the Veteran's hearing ability since the previous evaluation.

The Board notes that Table VIA is not applicable throughout the appeal period, as none of the examiners indicated that speech discrimination testing was inappropriate for the Veteran, and the examinations did not show the Veteran's threshold to be 55 decibels or more at each of the four specific frequencies (1000, 2000, 3000, and 4000 Hertz), or that his puretone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz. 38 C.F.R. §§ 4.85(c), 4.86(a).

Over the appeal period, the Veteran exhibited hearing no worse than Level III in the left ear and Level II in the right ear.  At the most recent evaluation, the Veteran exhibited hearing no worse than Level II in the left ear and Level I in the right ear.  Accordingly, based on the medical evidence of record, the Board finds that the criteria for a compensable rating were not met at any time during the appeal period and a staged rating is not warranted.  Hart v. Mansfield, 21 Vet. App. at 505.  

To the extent that the Veteran may believe that his hearing loss is more severe than currently evaluated, the Board observes that, although he is competent to report symptoms such as difficulty understanding speech or hearing clearly with background noise, he is not competent to report that his hearing acuity is of sufficient severity to warrant a particular evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that they observed and that are within the realm of their personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 - 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board has considered whether an extraschedular rating may be warranted. 
Such consideration requires a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun v. Peake, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If his disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.

Here, the Veteran has demonstrated high frequency hearing loss and has consistently described difficulty hearing conversation, needing to ask people to repeat themselves, and increased difficulty hearing speech when there is ambient noise.  The Rating Schedule contemplates the hearing loss levels exhibited by the Veteran, providing for progressively higher evaluations with increasing puretone threshold averages and worsening speech recognition.  Further, the Court held in Rossy v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1794 (Dec. 13, 2017), relying upon Doucette v. Shulkin, 28 Vet. App. 366 (2017), that, absent other factors, the complaint of difficulty understanding conversations in various contexts was "squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria."  Therefore, as the Veteran's level of disability and symptomatology are contemplated by the Rating Schedule, the first Thun inquiry is not satisfied and referral is not warranted.  Urban v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1312 (Sep. 18, 2017) (if either Thun element is not met, then referral for extraschedular consideration is not appropriate).  The Board's assessment is supported by a December 2010 opinion from the VA Director of Compensation Service who addressed this question and noted that the Veteran's difficulties would be expected from a hearing loss disability.
 
Therefore, based on the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for bilateral hearing loss throughout the appeal period.  The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57.




II.  Extraschedular TDIU

TDIU is 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, but not to his age or the impairment caused by any 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 (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater.  See 38 C.F.R. § 4.16(a).   For these purposes, disabilities of common etiology are considered a single disability.  Id.

Where these requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  Such claims should be submitted to the Director of Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b) (interpreting 38 U.S.C. § 501).

The Board is required to obtain the Director's decision before the Board may award extraschedular TDIU.  See Wages v. McDonald, 27 Vet. App. 233, 236 (2015).  However, the Board is not then limited to ensuring that the Director had the correct and full facts when rendering her decision, and the Board is not otherwise bound by the Director's decision.  Id.  The Director's decision is no different than an RO's decision in terms of its effect on the Board's statutory jurisdiction and the Board's standard of review.  The Director's decision denying or awarding an extraschedular rating is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence.  It is simply a decision that is adopted by the RO and reviewed de novo by the Board.  Id.

For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See 38 C.F.R. 4.16(a), Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran's service-connected disabilities prior to August 19, 2010, were a chronic low back disability evaluated as 20 percent disabling from October 29, 1999, and 40 percent disabling from May 30, 2009; a left knee disability evaluated as 10 percent disabling from October 29, 2009, and 20 percent from June 2, 2003; tinnitus evaluated as 10 percent disabling from October 29, 2009; and bilateral hearing loss evaluated as 0 percent disabling from October 29, 2009.  The combined evaluation for compensation was 40 percent from October 29, 1999, and 60 percent disabling from May 30, 2009.  As noted above, he received a 100 percent disability rating for PTSD, effective August 19, 2010.  Accordingly, the Veteran is not eligible for a schedular TDIU prior to August 19, 2010.

The Veteran's educational background includes a Bachelor of Arts degree in history with minors in German and Biology, and an Emergency Medical Technician (EMT)/Paramedic certification.  The Veteran reported to the Social Security Administration (SSA) in his application for disability benefits that he worked as a paramedic from 1964 to 1998.  In his application for TDIU, the Veteran stated that he last worked full-time as an EMT/Paramedic on December 20, 1998.  He reported that his service-connected chronic low back disability, left knee disability, bilateral hearing loss, and tinnitus prevented him from securing or following any substantially gainful occupation.  The Veteran described in the May 2007 and January 2015 hearings that he was unable to move a stretcher in and out of an ambulance due to his back and knee disabilities, and was unable to hear his patients and coworkers while riding in the ambulance due to his hearing loss and tinnitus.

The Veteran's former employer, Alliance Ambulance, submitted a letter in March 2009 stating that reemployment with the company was not possible due to the Veteran's back problems.  

The Veteran reported that he had several jobs from 1999 to 2003.  At the May 2007 hearing, the Veteran reported that he tried working as a contract insurance medical examiner but could not move the medical equipment (i.e. EKG machines, etc.) necessary.  He then tried emergency room medical record coding, but could not keep up at the level required.  At that time, he noted that he was on several pain medications that affected his abilities.  He reported, and the medical records confirm, that he was prescribed Vicodin and later morphine for the pain in his lower back and left knee.  The Veteran's wife testified that because of his hearing difficulties, he was stressed out in the medical coding position and that affected his ability to do the work.  Additionally, he had to commute to the position, which increased his back and knee pain.  From February 2002 to February 2003, he worked for 12 to 15 hours per week as a clerk at a bookstore.  The Veteran stated that he has been self-employed in light farming since February 2003 with no reported earnings.  At the January 2015 hearing, the Veteran and his daughter reported that he now has to have assistance doing yardwork but continues his gardening.  The evidence considered indicates that the Veteran is not currently employed and has not been employed for many years.  

In April 2004, a VA Vocational Rehabilitation counselor determined that the Veteran's service-connected disabilities were considered to materially contribute to impairment of employability.  The Veteran was found to have a serious employment handicap and it was not considered reasonably feasible for the Veteran to achieve a suitable employment goal.  He was granted Chapter 31 services to pursue a program of independent living and was given several assistive devices (electric recliner to assist in standing, raised toilet seat, safety bars).  Specifically, it was noted that limitations on his ability to work included lifting, carrying, pushing, pulling, climbing, balancing, stooping, kneeling, crouching, crawling, standing, walking, sitting, and hearing.  Also prohibitive was working in environments where there is extreme cold, noise, vibration, cluttered/slippery floors, high places, moving objects, and hazardous machinery.  Limitations further included work environments that require repetitive/fast pace of work, meeting emergencies, and competitive work.  The counselor considered both the Veteran's service-connected disabilities and non-service-connected disabilities in the opinion.  

Effective March 2005, SSA found the Veteran to be disabled under their rules due to disabilities of osteoarthrosis and allied disorders and deafness.  A psychiatric examination done in conjunction with the SSA determination found that the Veteran "certainly doesn't present as someone who could carry out sustained work.  It may be the combination of his emotional and physical factors has simply overwhelmed him."  An orthopedic examination estimated that the Veteran was able to walk between household and community level with a cane for one hour in an 8 hour workday; stand for 10 minutes continuously; and sit for 60 minutes continuously, provided adequate change of position.

One of the Veteran's VA medical providers stated in July 2010 that the Veteran has multiple medical conditions including chronic pain and has been unemployable in her opinion since 2000 and the condition is permanent.  

A determination from the VA Director of Compensation Service in December 2010 found that the Veteran had been unemployed for many years and his interference with employment appeared to be related to his other physical and mental disabilities, excluding his hearing loss. 

VA examinations that provided opinions as to the Veteran's disabilities' effects on employability include an April 2015 knee and lower leg examination which found that the Veteran could only perform light physical and sedentary tasks due to his left knee condition; a May 2015 PTSD examination which found the Veteran to have total occupational and social impairment due to his mental condition; the November 2015 hearing loss DBQ which found that the Veteran can maintain physical and sedentary employment in quiet environments but was not considered unemployable due to hearing loss or tinnitus; a November 2015 back examination found the Veteran experienced functional impairment where he could not run, walk, or stand for long periods of time; the March 2016 hearing loss DBQ found the Veteran could seek employment in both physical and sedentary employments in quiet environments while noisy work environments would pose greater difficulty with speech understanding; and a March 2016 PTSD examination which found his mental condition to cause occupational impairment.

In August 2017, the Oakland RO referred the Veteran's claim for extraschedular TDIU to the VA Director of Compensation Service.  In October 2017, the Director issued an advisory opinion finding that extraschedular entitlement to TDIU was not shown due to the Veteran's back condition, left knee, hearing loss or tinnitus, nor was there any collective impact or that the rating schedule was shown to be inadequate.  Finding the Veteran's conditions to be of a "mild nature," she determined TDIU was not warranted on an extraschedular basis prior to August 19, 2010.

The Board finds that the Veteran did not have substantially gainful employment after January 2001.  His part-time work as a bookstore clerk is properly characterized as marginal employment.  Marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16(a) (2017).  The Veteran reported an average monthly income of $183.24 and the bookstore employer indicated in an unsigned VA 21-4192 that the Veteran earned $600 in the last 12 months of employment.  

The Board also finds that the totality of the evidence indicates that the Veteran was not rendered unemployable due to his service-connected disabilities.  It is clear from the Veteran's VA medical records, and SSA and VA examinations that his back and knee disabilities impaired his ability to perform the physical functions of his career as an EMT/Paramedic, and that his hearing loss and tinnitus impaired his ability to function in the environment of an ambulance.  This impairment of function, however, is recognized by the ratings assigned to the Veteran's service connected disabilities.  The pieces of evidence indicating an overall inability to work during the period prior to August 2010, however, plainly contemplate the impairment arising from disabilities that were not service connected, including the Veteran's age.  In these circumstances, the Board concludes that the weight of the evidence does not support the conclusion that entitlement to a TDIU on an extraschedular basis is warranted.  


ORDER

An initial compensable rating for bilateral hearing loss is denied. 

Entitlement to a TDIU on an extraschedular basis prior to August 19, 2010, is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals







Department of Veterans Affairs