Citation Nr: 18158074 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-06 028 DATE: December 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from February 14, 2008 to December 25, 2012, to include on an extra-schedular basis pursuant to 4.16(b) is denied. FINDING OF FACT For the appeal period from February 14, 2008 to December 25, 2012, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow any form of substantially gainful employment due to the Veteran’s service-connected disabilities. CONCLUSION OF LAW For the appeal period from February 14, 2008 to December 25, 2012, the criteria for entitlement to an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to December 1968. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In September 2011, the Board remanded the case for further evidentiary development. In August 2014, the Veteran was notified by letter that the VLJ who conducted the July 2011 hearing is no longer employed by the Board and thus was offered the opportunity to have another hearing before a member of the Board. In September 2014, the Veteran requested another video conference hearing before the Board. In October 2014, the case was remanded to schedule the Veteran for the requested video Board hearing. In February 2015, the Veteran was notified by letter that he was scheduled for a video conference hearing in March 2015. According to a June 2015 written brief by the Veteran’s representative, the Veteran appeared for the March 2015 hearing but chose not to participate in a hearing at that time. Accordingly, his request for an additional hearing was considered withdrawn. 38 C.F.R. § 20.704(d) (2017) In September 2015, the Board inferred the issue of entitlement to a TDIU and remanded it for evidentiary development and readjudication. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2018, the Board granted entitlement to TDIU from December 26, 2012. In that decision, the Board also inferred the issue of entitlement to TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), from February 14, 2008 to December 25, 2012, and remanded the matter for further evidentiary development and adjudication. 1. TDIU from February 14, 2008 to December 25, 2012 TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16 (a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). The Veteran has already been awarded a TDIU based on the combined impairment of his service-connected disabilities effective December 26, 2012. On February 14, 2008, VA received the Veteran’s request for a compensable rating for service-connected bilateral hearing loss. As discussed in the September 2015 Board decision, the issue of a TDIU was raised by the record in connection with the claim for entitlement to a compensable rating for bilateral hearing loss. See Rice, 22 Vet. App. at 447. As a result, the date of claim for entitlement to a TDIU is February 14, 2008. See Harper v. Wilkie, No. 16-3519 (Vet. App. Dec. 6, 2018) (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). From February 14, 2008 to December 25, 2012, the Veteran was service connected for tinnitus rated at 10 percent and bilateral hearing loss and residuals of shrapnel wound in the right arm, each rated as noncompensable (0 percent). The Veteran’s combined schedular disability rating does not meet the minimum requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis at any time during the appeal period prior to December 26, 2012. See 38 C.F.R. § 4.25. Because the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16 (a) for the appeal period from February 14, 2008 to December 25, 2012, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16 (b). It is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities, but does not meet the percentage standards set forth in § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board did so in its February 2018 remand. In April 2018, the Director of Compensation Services provided an advisory opinion on the Veteran’s claim for extraschedular TDIU prior to December 26, 2012. The Director noted that prior to December 26, 2012, service connection was established for tinnitus at 10 percent; right arm shrapnel wound and bilateral hearing loss each at 0 percent, with a combined evaluation of 10 percent. The Veteran claimed TDIU citing bilateral hearing loss as the reason he stopped working in 2002 as a truck driver. The past medical treatment was shown for but not limited to: dyslipidemia, sensorineural hearing loss, tinnitus, coronary artery disease, hypertension, osteoarthritis, and tinea unguium. The Director further noted the October 2011 VA audiological examination, at which the Veteran reported a history of noise exposure and hearing loss. Objective findings revealed a puretone threshold of 56 in the right ear and 64 left with 96 percent speech discrimination bilaterally. Occupational impact was defined by the Veteran reporting difficulties communicating with others due to his hearing loss. The VA examiner opined that sensorineural hearing loss can make understanding speech in noise and audibility or clarity of sounds in the hearing loss range difficult. The VA examiner stated that she would not expect this degree and configuration of hearing loss to render an individual unable to engage in substantial gainful employment. Tinnitus was noted to be present having an occupational impact of being irritating according to the Veteran. In sum, the Director indicated that the Veteran’s hearing loss and tinnitus were not shown to interfere with occupational activity. Further, the severity of the hearing loss made it difficult understanding speech, but not impossible with speech discrimination at 96 percent. Therefore, entitlement to TDIU was found not warranted on an extraschedular basis. The Board conducts de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16(b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (“[T]he Director’s decision [pursuant to 38 C.F.R. § 4.16(b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence”). For the following reasons, the Board finds that the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment for the appeal period from February 14, 2008 to December 25, 2012. In this case, the evidence of record includes a July 2011 Board hearing, at which the Veteran stated that he was a truck driver and that hearing loss affects his employability. He asserted that since he does not hear properly, he does not pronounce words properly. The Veteran further noted, “I can’t pass the physical exam with my blood pressure. My blood pressure goes up like 235/100.” At an October 2011 VA medical examination, the Veteran’s speech understanding was 96 percent for right and left ears in quiet. The examiner noted that the Veteran’s right ear presents with hearing thresholds within normal limits through the frequency range where most speech information is produced, and the left ear presents with normal thresholds to moderate sensorineural hearing loss through the frequency range where most speech is produced. The examiner concluded that she would not expect this degree and configuration of hearing loss to render an individual unable to engage in substantial gainful employment. The examiner noted that the Veteran’s hearing impairment would be expected to negatively impact the Veteran’s employability if the employment required no hearing loss in the frequency range of 3000 hertz or higher. The Veteran reported difficulties understanding conversations, particularly in situations of background noise and difficulties understanding speech of his grandchildren. The examiner further noted that sensorineural hearing loss is known to result in difficulties understanding speech in background noise and difficulties with clarity of speech. In an October 2012 VA audiology note indicates that the Veteran’s hearing loss and tinnitus impacts ordinary conditions of daily life, including the ability to work. The Veteran reported that he cannot hear or understand anything. He noted difficulty hearing in the presence of background noise. The Veteran further noted that his tinnitus makes him irritable, contributes to his inability to hear people, and hinders his ability to sound out words. The Board has considered the lay and medical evidence of record, including the October 2011 VA medical opinion. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354. The Board finds that the probative evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment from February 14, 2008 to December 25, 2012. The weight of the evidence of record does not demonstrate that the Veteran’s service-connected disabilities were so severe as to preclude all forms of gainful employment from February 14, 2008 to December 25, 2012. The October 2011 VA examiner’s conclusion that she would not expect this degree and configuration of hearing loss to render an individual unable to engage in substantial gainful employment is consistent with the evidence of record in this case. While the hearing loss and tinnitus disabilities cause occupational impairment of this Veteran, whose employment history is as a truck driver and whose education is four years of high school, they would not preclude him from performing this or a similar job, given the relatively minor impact of the degree of hearing loss and the tinnitus that existed during the relevant time period as indicated by the lay and medical evidence. Similarly, the right arm shrapnel wound residuals, rated noncompensable, have not been indicated by the medical and lay evidence to cause a degree of impairment that would render the Veteran unable to secure or follow substantially gainful employment, even given his limited occupational and educational history. (Continued on the next page)   For the foregoing reasons, the preponderance of the evidence is against the claim of TDIU from February 14, 2008 to December 25, 2012, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). The benefit-of-the-doubt doctrine is therefore not for application and entitlement to a TDIU is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel