Citation Nr: 18147110 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 07-20 655A DATE: November 2, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT 1. The Veteran is service-connected with several disabilities collectively rated at 50 percent. 2. The Veteran’s service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to December 1980. He received the Air Force Good Conduct Medal with one oak leaf cluster, Air Force Longevity Service Ribbon, and National Defense Service Medal. In October 2011, a videoconference hearing was held and the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran’s claims file. In an August 2018 letter from the Board, the Veteran was notified that the VLJ who conducted the October 2011 hearing is no longer with the Board and was also presented with an opportunity to request another hearing. The Veteran declined a new hearing. TDIU Total disability ratings for compensation based on individual unemployability (TDIU) 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, failure to meet the schedular requirements for TDIU is not a bar to benefits. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). 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). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-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 Veteran contends that his service-connected back disability, left lower extremity radiculopathy, bilateral hearing loss and tinnitus prevent him from securing or following substantially gainful employment. The Veteran has not met the singular (60 percent) or combined (70 percent with one disability ratable at 40 percent) rating requirement for TDIU at any time during the appeal period. Accordingly, the Veteran’s TDIU claim was referred to the VA Director for Compensation Service for extraschedular consideration as required by the provisions of 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In March 2017, the Director found that the Veteran’s service-connected disabilities did not preclude gainful employment and that entitlement to TDIU on an extraschedular basis had not been established. See March 2017 Correspondence, pp. 1-2. However, the Board is not bound by this determination and shall conduct a de novo review of the claim. Wages, 27 Vet. App. at 238. The Veteran contends that his service-connected disabilities caused him to take early retirement in 2009 and has precluded him from following substantially gainful employment since then. See January 2015 Affidavit, pp. 1-2. The Veteran completed high school and two years of college. His post-service career consists of 10 years at an avionics manufacturer, 14 years with the U.S. Postal Service, and 3 years at Ace Hardware (part-time). Id. at p. 2; July 2015 Veteran’s Application for Increased Compensation Based on Unemployability, p. 1. In support of his claim, the Veteran submitted two private assessments. A December 2013 assessment set forth the Veteran’s employment history. See December 2013 Other, p. 4. The Veteran reported that he was unable to continue in his work in avionics because he would often miss information being told to him due to his hearing loss. The vocational expert noted that the Veteran’s hearing loss makes it difficult for the Veteran to clearly hear speech in many situations, and his hearing loss will cause significant difficulty in most listening situations. Regarding the Veteran’s back disability, the vocational expert noted that it impacts the Veteran’s ability to sit for long periods of time, lift greater than five pounds, and walk more than one block. Moreover, the Veteran reported needing to reduce the number of hours he works and to take time off from work due to back pain. The expert ultimately opined that the Veteran’s service-connected impairments prevent him from continuing the work he is qualified to perform, and from securing and following any other substantially gainful employment. The vocational assessment submitted in August 2017 contains similar findings regarding the Veteran’s functional impairment. The Veteran reported that he can only stand for 10 to 15 minutes at time before needing to sit, and can only sit for 10 to 15 minutes at a time before needing to stand and walk around. August 2017 Third Party Correspondence, p. 8. The Veteran reported that he was fatigued due to constant and radiating back pain. Further, he reported needing to lie down two to three hours per day on and off to relieve pain, tingling and numbness, and spending most of the day in a reclined position. Further, the Veteran experiences trouble understanding phone conversations and other conversations with background noise. In the context of his past employment, the Veteran once again noted that he left his job in avionics because of misunderstandings that resulted from his hearing impairment. He further stated that his hearing impairment interfered with his ability to talk to customers and supervisors while at the U.S. Postal Service, and that his back would cause him to have to take long breaks while out delivering mail. During his part-time employment with Ace Hardware, the Veteran stated that he had issues with understanding customers and, even with accommodations, still had trouble with continued back and leg pain. The vocational expert opined that the Veteran’s back disability and hearing disabilities make it impossible for the Veteran to work at any exertional level due to pain and to communicate effectively with others. A December 2016 VA examination opined that the combined effects of the Veteran’s service-connected disabilities on his ability to function in a physical and sedentary occupation are to limit employment tasks that require standing for greater than 15 minutes, walking more than one-half of a block, lifting greater than 20 pounds, running, jumping or climbing. December 2016 VA Examination, p. 1. The examiner opined that there is no limitation for sedentary employment if the Veteran is allowed to take breaks from prolonged sitting and if he is able to use binaural amplification for tasks that require a high level of speech discrimination. The Board finds that the evidence for and against the Veteran’s claim is at least in equipoise. The Veteran’s hearing loss interferes with his ability to effectively communicate, and his back disability and associated radiculopathy interfere with his ability to perform physical employment tasks. The Veteran’s employment history consists exclusively of work that requires the ability to communicate effectively or perform physical tasks, and the Veteran’s disabilities have been shown to impact these abilities. The Veteran does not have any other specialized education, training or other experience that suggests he may be able to secure gainful employment that does not require these abilities. Moreover, many of the symptoms enumerated above would impact the Veteran’s ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU on an extraschedular basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel