Citation Nr: 18158918 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 11-22 657 DATE: December 18, 2018 ORDER Entitlement to a total disability rating based on individual unemployability is denied. FINDING OF FACT The most competent and probative evidence does not support a finding that the Veteran is unable to secure and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1967 to February 1971. 1. Entitlement to a total disability rating based on individual unemployability 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); see also Fanning v. Brown, 4 Vet. App. 225 (1993). 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); Blackburn v. Brown, 4 Vet. App. 395 (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 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 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 v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 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 v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Turning to the facts of the case, the Veteran’s service-connected disabilities consist of tinnitus, rated 10 percent disabling, and bilateral hearing loss, rated noncompensable. His combined disability rating of 10 percent does not meet the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Thus, the Board may only consider whether TDIU may be referred on an extraschedular basis. 38 C.F.R. § 4.16(b). By way of history, in a September 2012 decision, the Board determined that the issue of entitlement to TDIU was raised by the record. At that time, the Board remanded the issue for further development and adjudication in the first issue. Upon remand, the Agency of Original Jurisdiction (AOJ) furnished the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The AOJ also requested that the Veteran complete VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. To date, the Veteran has not provided the requested information regarding his employment history or eduction. Other evidence in the record reflects that after service, the Veteran worked as a full-time teacher. The Veteran described having difficulty hearing his students and coworkers. See Correspondence dated June 5, 2009; Application for Pension dated August 2017. At a private examination dated April 2011, the Veteran indicated that he was unable to understand regular quiet conversation. He reported that in order to understand people, he had to ask them to speak clearly and loudly; he also tried to read their lips while they spoke. Upon examination, the clinician found that the Veteran’s hearing loss impacted his daily activities, as it interfered with communication. At the March 2018 VA audiological examination, the Veteran indicated that his hearing loss and tinnitus made it difficult for him to hear what other people were saying. Based on the evidence of record, the Board finds that the Veteran’s service-connected hearing loss and tinnitus did not preclude substantially gainful employment. The Board recognizes that the Veteran’s disabilities did impact his daily activities and made it difficult to hear other people talking. However, the Board finds that the impairment the Veteran described is adequately contemplated under his assigned disability ratings. In order to be awarded TDIU, the record would have to show that the Veteran was unable to maintain gainful employment, which is not the case here. While the Veteran does not appear to be working currently, there is nothing indicating that his service-connected disabilities prevent him from working. Specifically, there is no indication that his hearing loss and tinnitus prevent him from performing the physical and mental acts required to maintain gainful employment. Van Hoose, 4 Vet. App. at 363. (Continued on the next page)   While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone produced unemployability. Although they produce some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran’s service-connected disabilities. As such, entitlement to TDIU is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel