Citation Nr: 18156141 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 13-19 406 DATE: December 7, 2018 ORDER Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 30, 2008 is denied. Entitlement to a TDIU beginning April 19, 2011 is granted. REMANDED Entitlement to a TDIU from June 30, 2008 to April 18, 2011 is remanded. FINDINGS OF FACT 1. Prior to June 30, 2008, the Veteran’s service-connected disabilities did not preclude him from securing or following substantially gainful employment. 2. Beginning April 19, 2011, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. A TDIU prior to June 30, 2008, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). 2. Beginning April 19, 2011, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a September 2017 decision the Board denied the Veteran’s claim for TDIU prior to September 5, 2014. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted a Joint Motion for Partial Vacatur and Remand filed by the parties to the appeal. The Court found the Board mischaracterized the Veteran’s prior work history and failed to adequately address the Veteran’s education level. Accordingly, thereby vacating the Board’s decision and remanding the matter for readjudication. Neither the Veteran nor his representative have 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). TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. When a Veteran’s disability ratings do not meet the minimum schedular criteria for a TDIU, the Board must still consider whether he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In these situations, the claim must be submitted to the Chief Benefits Director or Director of the Compensation Service for extraschedular consideration. The Board notes the Veteran was awarded TDIU from September 4, 2014, so the Board will only consider the period prior to see if TDIU was warranted for an earlier date. After service the Veteran worked as a high school ROTC instructor until 1991. On the Veteran’s September 2014 TDIU claim he indicated that he worked 40 hours a week at a high school as a ROTC instructor and stated that the type of work was “teaching.” He stated that his back condition, CAD, and bilateral hearing loss caused him to stop working. The TDIU claim arose out of the increased rating claim for CAD received on January 6, 2011. Therefore, the appeal period for the TDIU claim is the same as the appeal period for the increased initial rating for CAD. As a result of a May 2014 Board decision, the Veteran was granted an effective date of April 6, 1992 for the grant of service connection for CAD and the assignment of an initial 30 percent rating. Therefore, the appeal period begins on April 6, 1992. The Board will consider the impact of his service-connected disabilities on his employability for the entire appeal period. Prior to June 30, 2008 Prior to June 30, 2008, the Veteran’s combined rating was 30 percent. His bilateral hearing loss was rated as noncompensable from November 1, 1970. His CAD was rated at 30 percent from April 6, 1992. Thus, the schedular requirements for TDIU were not met prior to June 30, 2008, as his combined rating was less than 70 percent. The Board considers the effect of his CAD on his employability prior to June 30, 2008. The Veteran’s CAD was reported as asymptomatic. For example, it was described as asymptomatic in November 1994. His private treatment records note that the Veteran’s CAD was clinically stable. VA treatment records do not note symptoms of CAD. A December 2003 chest x-ray noted no active cardiac abnormalities. Further, the Board notes the Veteran’s CAD was asymptomatic during a stress test. The Board finds that the evidence shows the Veteran was not unemployable due to this CAD because it was asymptomatic. Although the Veteran stated that his CAD was one of the reasons why he stopped working in 1991, the preponderance of evidence is against such a finding. The evidence does not show that his CAD would have prevented his ability to continue his physical work as a ROTC instructor. He was not limited in his employment capabilities due to his CAD because it was clinically stable. Regarding his bilateral hearing loss, it was evaluated as noncompensable prior to June 30, 2008. Although he credibly reported that he had decreased hearing acuity, his hearing loss was not severe enough to receive even a compensable rating. This supports a finding that it did not cause unemployability. Additionally, the medical evidence of record does not indicate that his bilateral hearing loss caused him to be unable to work. There is also no lay evidence describing the impact of the Veteran’s hearing loss on his ability to work prior to June 30, 2008. Service connection for his lumbar spine disability was not in effect until June 30, 2008 and cannot be considered. Thus, referral for consideration of an extraschedular TDIU prior to June 30, 2008 is not warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). Period Beginning April 19, 2011 From June 30, 3008, the Veteran’s bilateral hearing loss was rated as 30 percent. His lumbar spine disability was rated at 20 percent from June 30, 2008. His CAD remained at 30 percent. His combined rating was 60 percent. Therefore, the schedular requirements for a TDIU were not met. Then, on April 19, 2011, his rating for CAD was increased to 60 percent and his combined rating became 80 percent, which satisfied the criteria for consideration of a schedular TDIU. “[W]hen the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). At an August 2013 VA examination for his back, the examiner concluded that the Veteran was unable to perform manual work due to his service-connected back disability. Earlier medical records from 2009 show that his back disability increased in severity when he walked, stood, bent, or lifted. In his September 2015 VA Form 8940, the Veteran stated that he had a high school education with no subsequent training. It is unlikely that his education would allow him to transfer to a non-physical job such as office work. A TDIU is granted, effective April 19, 2011, when the schedular criteria were met. REASONS FOR REMAND From June 30, 3008 to April 18, 2011, the Veteran’s bilateral hearing loss was rated as 30 percent. His lumbar spine disability was rated at 20 percent from June 30, 2008. His CAD remained at 30 percent. His combined rating was 60 percent. Therefore, the schedular requirements for a TDIU were not met. As noted above, the Board cannot assign an extraschedular TDIU in the first instance. Referral to the Director of Compensation Service for extraschedular consideration of a TDIU is warranted. In a November 6, 2008 treatment note, the Veteran’s private doctor indicated that his back pain was aggravated by prolonged walking, standing, bending, and lifting activities. In addition, his bilateral hearing loss worsened, as evidenced by his increased rating to 30 percent. The Board notes in his February 2009 VA examination the Veteran indicated his hearing loss made it more difficult to hear his family and friends. The Veteran has a limited work experience. He is precluded from any type of employment requiring physical labor. Furthermore, he is hindered by his hearing loss, which would negatively impact his ability to work manual labor or in an office type setting. As the evidence suggests that the Veteran is unable to work due to his service-connected disabilities, the Board finds that consideration of an extraschedular TDIU is necessary. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration for the period from June 30, 2008 to April 18, 2011. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. Then, readjudicate the issue on appeal. If the benefit is denied, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel