Citation Nr: 18155324 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 14-44 243 DATE: December 4, 2018 ORDER A total disability rating based on individual unemployability as a result of service connected disabilities is denied. FINDING OF FACT The Veteran’s service connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from June 1971 to April 1975. In December 2014, the Veteran requested a hearing before a Veterans Law Judge. A review of the file indicates that the Veteran submitted a request to withdraw the hearing on March 15, 2018. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell, 9 Vet. App. 237, 238-9. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer, 22 Vet. App. 242. In October 2010, the Veteran filed his claim for a TDIU. He asserts that he is unable to maintain substantially gainful employment due to his bilateral hearing loss. The Veteran’s service-connected disabilities are bilateral hearing loss evaluated at 40 percent from October 19, 2010, to July 9, 2014, 60 percent from July 9, 2014, to October 1, 2018, and 40 percent from October 1, 2018, a skin disability evaluated at 30 percent disabling, and tinnitus evaluated at 10 percent disabling. He is also service connected for hypertension evaluated at a noncompensable rate. The Veteran has a combined disability rating of 60 percent from October 19, 2010, to July 9, 2014, 80 percent from July 9, 2014, to October 1, 2018, and 60 percent from October 1, 2018. 38 C.F.R. § 4.25. Therefore, the Veteran meets the criteria for a TDIU from July 9, 2014, to October 1, 2018. Outside of this period, however, the Veteran not have a single disability rated at 60 percent or more nor does he have two more disabilities where at least one disability was rated at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In his August 2011 notice of disagreement, the Veteran requested extraschedular consideration. As such, the Board must consider whether the Veteran has demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). After a review of the competent evidence of record, the Board finds that a TDIU on a schedular basis or referral for extraschedular consideration of a TDIU are not warranted. In a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in February 2011, the Veteran reported that he last worked in 2006 because he became too disabled to work. He reported that last worked in manual labor. He indicated that he had an eighth grade education. He asserted that his bilateral hearing loss prevented him from securing or following any substantial gainful occupation. A review of the Veteran’s claims file shows that he does not have an eighth grade education but earned a GED during his active service. Furthermore, his medical records show that he was unemployed due to his mental health, which is not service connected. In November 2010, the Veteran was afforded a VA examination for his bilateral hearing loss. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in an inability to understand spoken instructions, but that his bilateral hearing loss had no effect on his usual daily activities. In August 2011, the Veteran’s physician reported that he was unable to function in an office setting and that his bilateral hearing loss resulted in significant communication problems. In October 2011, the Veteran reported that his hearing loss was so severe he could not get along with others. In June 2012, the Veteran reported that he was able to read lips. In May 2017, the Veteran was afforded a VA examination for his skin disability. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s skin disability did not impact his ability to work. In May 2017, the Veteran was afforded a VA examination for his bilateral hearing loss. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in an inability to follow oral instructions. In September 2017, the Veteran was afforded a VA examination for his hypertension. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that during periods of rises in his blood pressure, the Veteran had increased anxiety levels and was unable to concentrate. In April 2018, the Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in the Veteran missing work due to ear aches, an inability to follow oral instructions, and an inability to hear safety warnings. The examiner reported that the Veteran’s tinnitus did not impact his ability to work. While it is ultimately a rating consideration as to whether the Veteran is able to obtain or maintain substantially gainful employment, the medical evidence of record in this case does not suggest that the Veteran has been so functionally limited by his service connected disabilities as to be unable to obtain or maintain substantially gainful employment. VA medical opinions that weigh against the Veteran’s claim for a TDIU are persuasive and found to have great probative value, as they were provided after the examiners had an opportunity to interview the Veteran, review his record, and conduct physical examinations of the Veteran. The VA examiners have acknowledged that the Veteran’s service-connected disabilities might limit the types of work that could be performed. However, the Veteran’s service-connected disabilities would not preclude all forms of substantially gainful employment. The Board acknowledges that the Veteran is competent to report symptoms of his service connected disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. However, ultimately, it is a rating determination as to whether the Veteran’s multiple service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, the Board has reviewed all of the evidence of record, but concludes that the findings of the VA examiners are the most competent and probative evidence of record, and therefore is accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability level, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to warrant the assignment of TDIU. Although they undoubtedly produce some, even significant, impairment, the evidence does not reflect substantially gainful employment is precluded solely due to the Veteran’s service-connected disabilities. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU. The Board does not believe that the Veteran’s service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The Veteran would be able to perform simple, unskilled work that is self-paced, does not require social interaction, and does not require exposure to hazards. Examples of such work in the Dictionary of Occupational titles would be a housecleaner, yard worker, and laundry worker. (Continued on the next page)   The Board very deeply appreciates the Veteran’s honorable service to his country, unfortunately, the facts of this case simply do not support the assignment of a TDIU. While the Veteran might have some limitations from his service connected disabilities, a TDIU is only warranted when service connected disabilities prevent a person from obtaining or maintaining substantially gainful employment, which is not shown here at any point during the course of the appeal. Accordingly, a TDIU, both on a schedular and on an extraschedular basis, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel