Citation Nr: 20003239 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-12 973 DATE: January 14, 2020 REMANDED Entitlement to total disability rating based on individual unemployability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1964 to November 1967 with subsequent service in the Army National Guard. This appeal to the Board of Veteran’s Appeals (Board) arose from a November 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See December 2011 Notice of Disagreement; March 2013 Statement of the Case (SOC); May 2013 Substantive Appeal (VA Form 9). In the March 2015 Board Decision, the Board determined that the claim for entitlement to a TDIU rating derived from the Veteran’s claim of entitlement to an increased rating for bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 477 (2009). The Board remanded the claim for further evidentiary development. In December 2017, the Board denied entitlement to a TDIU rating. The Veteran appealed the December 2017 Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in May 2019. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to TDIU due to his service-connected disabilities. After a review of the evidence, the Board finds that the evidence warrants a referral for consideration of a TDIU rating on an extraschedular basis. In order for the Veteran to be eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16, the Veteran's disability rating must meet the schedular criteria. In this case, the Veteran is service-connected for bilateral hearing loss, rated noncompensable from December 29, 2004, then rated at 10 percent disabling from November 12, 2013, and currently rated at 30 percent disabling from August 8, 2017; tinnitus, rated at 10 percent disabling from December 29, 2004; history of non-displaced fracture, left mandible, rated noncompensable from November 20, 2009; and temporomandibular joint associated with history of non-displaced fracture, left mandible, rated at 10 percent disabling from March 15, 2011. The Veteran’s combined evaluation is 20 percent from March 15, 2011, 30 percent from November 12, 2013, and 40 percent from August 8, 2017. The Veteran does not meet the schedular criteria under 4.16(a). Nevertheless, the Board must consider whether the evidence otherwise warrants a referral to the Director of Compensation Service for entitlement to a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). 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 his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Turning now to the evidence of the record, at the May 2011 VA examination, the examiner noted that the Veteran’s hearing loss caused significant effects on the Veteran’s occupation. The Veteran reported difficulty hearing in his daily life and understanding speech in background noise. It was also noted that the Veteran’s tinnitus distracted him constantly. In a January 2012 private medical record, the Veteran reported clicking in his jaw, but it was noted that it did not cause any significant alteration in activity level. In the July 2014 Board Hearing, the Veteran asserted that he failed the Department of Transportation physical exam, specifically the verbal examination, due to his hearing loss. The Veteran stated that when he was driving, he had troubles hearing and communicating on the radio due to his hearing loss. On the April 2015 Formal Application for TDIU (VA Form 21-8940), the Veteran noted that his last employment was at Blue Water Sorting and Packaging as a truck driver from January 2005 to December 2007. The Veteran indicated that he left his employment due to his disability of hearing loss. The Veteran completed three years of high school. The Veteran noted he had no education or training before and since becoming too disabled to work. The Veteran further stated that commercial drivers license (CDL) requires forced whispered voice in the better ear at not less than five feet, with or without the use of hearing aids. The Veteran asserted that his score was 0 feet in both ears. The Veteran did submit the medical record indicating that score. On the September 2017 VA Examination, the examiner noted that the Veteran had difficulty hearing in all situations, especially in background noise. The Board acknowledges that the Veteran has had a job as a truck driver, during and post military service. He has not received any other training, education, or certification in other areas. He also completed up to three years of high school. Taking into consideration his education and training background, in addition to the noted functional impact of his hearing loss and tinnitus, it is plausible that the Veteran may be unable to perform the mental and physical acts required by employment. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation Service to consider entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service for consideration of entitlement to extraschedular TDIU is warranted. 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU due his service-connected disabilities on an extra-schedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b). In connection with the referral, the Regional Office / Appeals Management Center should include a full statement outlining the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 2. After the development has been completed, review the file and ensure that all development sought in this Remand is completed. Arrange for any further development indicated by the results of the development requested above. Then, readjudicate the issue of entitlement to extraschedular TDIU. If the determination remains adverse to the Veteran, a supplemental statement of the case (SSOC) should be provided to the Veteran and his representative. After they have given an adequate opportunity to respond, the case should be returned to the Board for appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.