Citation Nr: 18161275 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 99-00 251A DATE: December 31, 2018 REMANDED The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1959 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California which continued a noncompensable disability rating for bilateral hearing loss. The Veteran appealed the noncompensable rating and the subsequent procedural history is quite lengthy. In a March 2004 Board decision, the Board denied the Veteran’s claim for a compensable rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which in a June 2005 Order and pursuant to a Joint Motion for Remand (JMR), vacated the March 2004 denial and remanded the case to the Board. In particular, the Court found that the Board failed to discuss the “possible application of 38 C.F.R. § 3.32(b)(1)” also known as the extraschedular provision. On remand, the Veteran, through his representative, requested a hearing before a Decision Review Officer (DRO) and also submitted new evidence which had not been considered by the RO. In January 2006, the Board remanded the matter for a Board hearing. The Veteran was scheduled for a Board hearing in March 2007. However, only the Veteran’s attorney was present at the hearing. He indicated that the Veteran was not in the area and also wished to have a hearing before a DRO. In July 2007, the Board remanded the matter to afford the Veteran a DRO hearing. The Veteran was afforded a DRO hearing in December 2008 and, in March 2009, the Board remanded the matter for referral to the Chief Benefits Director for an extraschedular consideration. The matter was referred and the Veteran was denied extraschedular consideration by the Director of Compensation and Pension Service in a July 2009 memorandum. The matter was subsequently returned to the Board and in May 2012, the Board sent the Veteran a letter informing him that the Veterans Law Judge (VLJ) who heard his case in March 2007 was no longer employed with the Board. The Veteran chose to have a new hearing. In May 2012, the Board again remanded the matter to schedule the Veteran for a Board hearing. In January 2013, the Veteran was afforded a second Board hearing before another VLJ. At the hearing, the Veteran submitted additional evidence regarding his claim for extraschedular consideration. In a March 2013 remand, the Board referred the matter again to the Director of Compensation and Pension service for consideration of the new evidence. The matter was again referred and in a February 2016 memorandum, the Director again denied the Veteran’s request for extraschedular consideration. The matter was again returned to the Board for review and, in a September 2016 decision, the Board denied a compensable disability rating for the Veteran’s bilateral hearing loss, both on a schedular and an extraschedular basis. Significantly, the September 2016 Board decision declined to take jurisdiction over a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) finding that the holding of Rice was inapplicable because the evidence of record did not illustrate that the Veteran’s service-connected bilateral hearing loss prevented him from obtaining and/or maintaining gainful employment. Thereafter, the Veteran appealed the portion of the September 2016 decision that declined to take jurisdiction of a TDIU to the Court. In a December 2017 JMR, the Secretary of VA and the Veteran (the parties) moved the Court to vacate the September 2016 decision with respect to declining jurisdiction over a TDIU pursuant to Rice which was granted in a December 2017 Order. Significantly, the December 2017 JMR found that there was evidence that the Veteran’s service-connected bilateral hearing loss prevented him from obtaining and/or maintaining gainful employment. Importantly, during the course of the Veteran’s appeal for a higher rating for his bilateral hearing loss, the Veteran had argued that his hearing loss “had a profoundly negative impact” on his professional career. Specifically, it was noted that the Veteran had only secured sporadic short-term employment due to “unique challenges with foreign language interpretation, interviewing, and other necessary verbal interactions.” It was also noted that the Veteran had not been employed full-time since 1974 and had been completely unemployed since the late 1980s. Pursuant to a May 2018 request for a hearing, the Veteran was afforded a Board hearing before the undersigned VLJ regarding the TDIU issue in September 2018. A transcript of this proceeding has been associated with the claims file. A review of the claims file shows that the Veteran worked in advertising from 1969 to 1974 and has worked as a writer since 1975. However, the Veteran’s representative contends that this employment is not substantially gainful as the Veteran has made very little money as a writer. Throughout the pendency of the appeal, the Veteran’s representative has argued that the Veteran is unable to maintain substantially gainful employment due to his service-connected bilateral hearing loss. Specifically, the Veteran’s degree in business management only makes him qualified for an executive position which require a lot of communication, and the Veteran has trouble hearing high-pitched/soft voices (especially women’s voices). More recently, in May 2018 correspondence and during the September 2018 Board hearing, the Veteran’s representative has argued that the Veteran’s unemployment is also due, in part, to his service-connected left and right shoulder disabilities. Significantly, the Veteran is service connected for traumatic neuropathy, status post left shoulder separation with traumatic arthritis (rated as 60 percent disabling) and right shoulder trauma, secondary to old dislocation with degenerative joint disease (rated as 10 percent disabling). Given the Veteran’s difficulty with lifting, he is unable to work in general labor, manufacturing, and/or service jobs. Furthermore, the Veteran’s bilateral hearing loss caused him difficulty in maintaining employment in career fields left open to him by his shoulder disabilities. His education in business management restricts his viability as a worker almost exclusively to career fields heavily dependent on communication. Furthermore, the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) given his combined 70 percent disability rating. Given the above, on remand, the Veteran should be provided notice regarding the information and evidence necessary to substantiate a TDIU. Also, a remand is necessary in order to request that the Veteran provide a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) that includes details regarding his employment history, to include the amount of money he has made as a writer since 1975. Without this information, the Board is not able to make a determination on this matter. The matter is REMANDED for the following action: 1. Provide the Veteran with proper notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). (Continued on the next page)   2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel