Citation Nr: 1808181 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 07-24 238A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active military service from June 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The TDIU claim was remanded for additional development in March 2011 and February 2012. In February 2012, the Board also remanded a claim of increased rating for posttraumatic stress disorder (PTSD) for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a supplemental statement of the case in March 2013 addressing the issues of entitlement to increased rating for PTSD and TDIU. In an April 2013 letter, the RO notified the Veteran of a proposal to sever service connection for PTSD. In a June 2016 rating decision, service connection for PTSD was severed, due to fraud, effective June 16, 2005. The Veteran was provided notice of that determination in June 2016. Accordingly, the Board finds that there has been substantial compliance with the prior remands. Stegall v. West, 11 Vet. App. 268 (1998). In February 2011, the Veteran testified at a videoconference hearing chaired by a VLJ. A transcript of the Board hearing has been associated with the Veteran's claims file. The VLJ who chaired that hearing is no longer employed by the Board. In a statement received in July 2017, the Veteran requested a new videoconference hearing, and in November 2017 testified before the undersigned VLJ. A copy of the transcript of that hearing is of record. The Board also recognizes that in an April 2013 letter to the RO, Vietnam Veterans of America notified VA that it had withdrawn its representation of the Veteran and, consequently, was no longer his representative in this appeal. The record on appeal does not contain any form (either a VA Form 21-22 or VA Form 21-22a) since executed appointing another valid representative concerning this claim, so the Board is proceeding with its consideration of this appeal with the understanding that the Veteran is appearing, pro se, meaning on his own behalf. The Veteran also acknowledged on the record at the November 2017 hearing that he was no longer represented by the Vietnam Veterans of America. FINDING OF FACT The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met, and the evidence does not warrant referral of a TDIU on an extraschedular basis. 38 U.S.C. § 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.41, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A TDIU 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's service-connected disabilities are bilateral hearing loss, rated at percent from August 15, 2007 and 20 percent from October 25, 2012; and tinnitus, rated as 10 percent from August 15, 2007. His combined rating is 10 percent from August 2007 and 30 percent from October 2012. Consequently, he does not meet the schedular requirements for a TDIU. Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, as already noted, an inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. In a January 2008 VA psychiatric treatment note, the Veteran reported that he was currently employed part-time as a carpenter and contractor. On January 2008 VA audiological examination, the examiner noted that the Veteran's hearing loss and tinnitus interfered with his sleep and his communication. She noted he had difficulty if he could not see the speaker, and that he notices his tinnitus if he is in a quiet setting. In a January 2008 examination for the Social Security Administration (SSA), the Veteran was noted to wear hearing aids. A March 2009 SSA decision shows that the Veteran was determined to be disabled from December 27, 2007 due to carpel tunnel syndrome and cervical spine radiculopathy disabilities. The Veteran provided a detailed work history in association with his SSA claim. Since separation, he had been employed as a carpenter, legal investigator, and a gas station attendant. He also indicated he had several periods of incarceration. In his May 2009 VA Form 21-8940 application for TDIU, the Veteran reported that he had last worked full-time from 1995 to 2007 when he worked as a carpenter. He alleged that he was prevented from securing or following any substantially gainful occupation based on his carpal tunnel, tinea, and psychiatric disabilities. In an October 2009 letter, the Veteran's VA psychiatrist described that she treats the Veteran for medication management of his PTSD. She opined that "due to severity and duration of his symptoms and his inability to tolerate medications he remains unemployable with a poor prognosis." In his May 2010 VA Form 9 substantive appeal, the Veteran asserted that his PTSD rendered him unemployable. At the February 2011 videoconference hearing, the Veteran testified that he was unable to find someone to hire him due to his age. He also testified that when he goes to stores that there is a lot of loud noises and he has trouble hearing what people are saying. He described that he did not have the tolerance and patience to deal with people asking him the same thing over and over again because of his trouble hearing and annoyance. On April 2011 VA PTSD examination, the Veteran attributed his multiple jobs due to his low tolerance for boredom. The examiner opined that the Veteran's diagnosed PTSD did not render him unemployable because "he has maintained responsible positions and activities within the alcoholics anonymous community for a number of years." On October 2012 VA PTSD examination, the Veteran reported having 3 years of college and that he has been unemployed since 2005. The examiner noted that the Veteran reported working for the CIA, 2 senators, private investigation, sales, police officer, and carpentry for 10 years, but he may have exaggerated this history. The examiner opined that the Veteran's mental diagnoses manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally function satisfactorily with normal routine behavior, self-care and conversation. The examiner opined that the Veteran's psychiatric complaints and symptoms are insufficient to make him unemployable as there was no evidence of a psychotic process, impaired judgement, thought disorder, suicidal ideation, impulsive behavior, spatial distortions or inadequate hygiene or functioning. On October 2012 VA hearing loss examination, the examiner noted sensorineural hearing loss in both ears in the frequencies ranges of 500 to 4000 hertz and 6000 hertz and higher. She opined that the Veteran's hearing loss did not impact his ordinary condition of daily life including his ability to work because the Veteran denied that his hearing loss and tinnitus interfered with his ability to work. The examiner noted that the Veteran specifically asserted that his hearing loss and tinnitus did not interfere with his ability to work, that it was his PTSD and concertation that interfered with his employment. On October 2012 VA general medical examination, the Veteran reported that he had worked as a legal assistant and most recently as a carpenter. He reported that he stopped working as a carpenter in 2005 due to carpal tunnel syndrome. He also reported that he is limited in his ability to work due to "authority issues," depression, anhedonia, anxiety, and difficulty maintaining relationships. The examiner opined that his non-service-connected disabilities had little effect on his employability, although his carpal tunnel created difficulty with lifting and using his right hand. At the November 2017 videoconference hearing, the Veteran testified, before the undersigned, that he had worked as a private investigator before 2005, when he went to prison. He testified that he had taken college courses, but did not have a college degree. He testified that until 2005 he worked as a freelance private investigator. He testified that his hearing loss impacts his ability to work because it caused vigilance since if he is walking down a dark alley he cannot hear and could get hit by someone. He testified that he wore hearing aids, but he sometimes cannot hear with them. He also reported that he had difficulty with his ability to find work because he could not drive due to having his license being taken away to his felony conviction. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Here, the Board finds that a preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or maintain substantially gainful employment, or that a referral for extraschedular consideration of a TDIU would be indicated. The Board finds that the preponderance of the evidence weighs against finding that the Veteran's service-connected bilateral hearing loss and tinnitus preclude the Veteran from employment. While the Veteran reported having difficulty with his hearing loss throughout the period, specifically trouble hearing people he cannot see and over loud noises, he has not asserted that he is unemployable due to his hearing loss and tinnitus, his only service-connected disabilities. The medical evidence does not support a finding that he's unemployable as a result of his service-connected hearing loss and tinnitus. The only medical evidence that addresses the impact on the Veteran's hearing loss and tinnitus on his ability to work is the October 2012 audiological examination. The October 2012 examiner opined that the Veteran's hearing loss did not impact his ability to work based on the Veteran's own specific reporting that his hearing loss and tinnitus did not impact his ability to work, but rather his non-service-connected PTSD was what interfered with his ability to work. The Board recognizes that at the November 2017 videoconference the Veteran testified that his hearing loss impacted his ability to perform his job as a private investigator, which he testified was his last occupation, because it caused vigilance. However, these statements are contradicted by the record, as his May 2009 application for TDIU, SSA employment history, and VA treatment records indicate that he was last employed from 1995 to 2007 as a carpenter. Further, service connection for PTSD was severed because of fraud on the Veteran's part. Accordingly, the Board assigns this testimony very limited probative value. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board also notes the Veteran's assertion throughout the period on appeal that his PTSD and psychological symptoms caused his unemployability, as well as the SSA determination that his carpal tunnel syndrome and cervical spine disabilities rendered him disabled. Further, the Board notes that on October 2012 general medical examination, the examiner opined that the Veteran had stopped working in 2005 as a carpenter due to carpal tunnel syndrome and noted that the Veteran reported he is limited in has ability to work due to his psychological issues. This evidence reflects that the Veteran's unemployability is likely based at least in part on nonservice-connected disabilities. Service connection is not in effect for carpal tunnel syndrome or a cervical spine disability and service connection was severed for PTSD is no longer service-connected for PTSD. Nonservice-connected disabilities are not considered in determining entitlement to tdiu. See 38 C.F.R. § 4.19. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due solely to his service-connected disabilities, bilateral hearing loss and tinnitus. Entitlement to TDIU is not warranted and referral for consideration of a TDIU based on an extraschedular basis is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs