Citation Nr: 18140720 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 09-41 862 DATE: October 5, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from March 1956 to May 1960. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the rating schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation and Pension (C&P) is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In an October 2014 decision, the Board construed the evidence of record to be a new claim for a TDIU that arose during the course of the appeal for an increased rating for bilateral hearing loss. Accordingly, the Board remanded the issue of a TDIU for further development that was necessary to adjudicating the claim on its merits. Initially, the Board finds that the schedular disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met. The service-connected disabilities are bilateral hearing loss (60 percent disabling) and tinnitus (10 percent disabling). The schedular disability rating for the service-connected bilateral hearing loss and tinnitus, taken as resulting from a common etiology, is 60 percent for the entire rating period on appeal from June 27, 2007. After a review of all the evidence, lay and medical, the Board finds that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities. Per the Board’s October 2014 remand, and in order to help gather information surrounding the Veteran’s employment history and level of education, VA sent a letter requesting the Veteran provide such information in July 2017. The July 2017 letter included a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Unfortunately, the Veteran did not complete and return the form to VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). Nonetheless, even though the Veteran did not provide the requested information, the Board has received sufficient evidence to find that the service-connected disabilities alone do not render the Veteran unable to obtain or maintain substantially gainful employment. The degree of occupational and functional impairment caused by the service-connected disabilities has been analyzed in a combined schedular rating of 60 percent from June 27, 2007. An August 2007 letter from the Veteran’s former employer indicates the Veteran was still employed after the service-connected hearing loss and tinnitus were assigned a combined 60 percent disability rating. An October 2017 VA examination report based on an interview with the Veteran shows the Veteran reported working as a carpenter for 33 years following service separation until his non-service-connected degenerative osteoarthritis of the spine caused him to retire at age 52. No examiner has opined the Veteran is unemployable due to the service-connected disabilities. To the contrary, an October 2014 VA examination report contains the VA examiner’s opinion that the Veteran would require visual cues with provision of the best possible signal to noise ratio and amplification in order to communicate auditorily; however, with these provisions, the VA examiner opined that the service-connected bilateral hearing loss and tinnitus would not cause the Veteran to be unemployable. Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel