Citation Nr: 20007693 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 09-14 099 DATE: January 29, 2020 ORDER Entitlement to an extraschedular total disability rating based on unemployability (TDIU) is granted effective May 30, 2002. FINDING OF FACT The Veteran’s service-connected hearing loss has precluded obtaining and maintaining a substantially gainful occupation since its effective date of service connection on May 30, 2002. CONCLUSION OF LAW The criteria for entitlement to an extraschedular TDIU prior to January 13, 2004, have been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1970 to June 1974. An August 2012 Board Decision remanded entitlement to an extraschedular TDIU and directed the agency of original jurisdiction (AOJ) to submit a request for extraschedular consideration to the Director of VA Compensation Service. A June 2015 Administrative Review for Extraschedular Consideration by the Director of VA Compensation Service denied extraschedular TDIU since May 30, 2002, based solely on the Veteran’s service-connected hearing loss and tinnitus. An August 2015 Administrative Review for Extraschedular Consideration by the Director of VA Compensation Service denied extraschedular TDIU from May 30, 2002, to May 20, 2006. A February 2016 Board Decision denied extraschedular TDIU prior to March 20, 2006. An October 2016 Joint Motion for Partial Remand by the U.S. Court of Appeals for Veterans Claims (CAVC) partially vacated the February 2016 Board Decision and remanded the matter of extraschedular TDIU for readjudication. An August 2017 Board Decision granted extraschedular TDIU effective January 13, 2004, but denied extraschedular TDIU prior to January 13, 2004. An April 2019 Memorandum Decision by CAVC partially vacated the August 2017 Board Decision and remanded the matter of extraschedular TDIU for readjudication. TDIU Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) 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). To warrant referral for extraschedular consideration, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant a referral; rather, the ultimate question is whether the Veteran’s combined service-connected disabilities, despite falling short of the schedular criteria for TDIU consideration, nevertheless prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 1. Extraschedular TDIU prior to January 13, 2004 The Veteran generally contends that his service-connected hearing loss has precluded obtaining and maintaining a substantially gainful occupation since November 2001. See November 2017 vocational assessment by KP; July 2019 vocational assessment by PC. The Veteran is currently service connected for: (1) depression associated with bilateral hearing loss (30 percent from January 13, 2004, and 100 percent since March 20, 2006); (2) bilateral hearing loss (0 percent from May 30, 2002, 10 percent from January 16, 2007, and 20 percent since April 21, 2015); (3) tinnitus (10 percent since January 21, 2004); and (4) traumatic erectile dysfunction (0 percent since January 16, 2007). See February 2019 Codesheet. Accordingly, the current, combined evaluation for compensation is: 0 percent from May 30, 2002; 30 percent from January 13, 2004; 40 percent from January 21, 2004; and 100 percent since March 20, 2006. Id. Currently, extraschedular TDIU has been granted since January 13, 2004. Id. Thus, the question currently before the Board is whether the Veteran is entitled to extraschedular TDIU prior to January 13, 2004. In May 2002, the Veteran filed an application for entitlement to service connection for hearing loss and, that same month, sent an email stating that he lost his job delivering frozen food because he misunderstood a customer saying “just a min” for “come in” and walked into the home; the Veteran reported that he had previously received complaints at the job alleging that he invaded other people’s personal space when trying to move in closer to hear them, and noted that he failed the company’s hearing examination. The Veteran further reported difficulty hearing whenever there was background noise present, feeling as if people were speaking another language, and that hearing aids failed to resolve his hearing difficulty. In another May 2002 email, the Veteran reported that he was undergoing vocational rehabilitation to be trained in a field that did not require good hearing. In July 2002, the Veteran underwent a VA audiology examination; the examiner documented the Veteran’s reports of hearing loss and his history of noise exposure in the military, noting that he also reports periodic tinnitus which does not affect daily living. The examiner diagnosed the Veteran with “normal [hearing] through 1000 hertz, sloping to moderately severe, sensorineural hearing loss bilaterally” and determined that it was etiologically related to service. In an August 2002 VA treatment note, a psychiatrist noted that the Veteran “has difficulty with his hearing that makes him unsuitable for many jobs.” In September 2002 vocational rehabilitation notes, the Veteran indicated that he believed he was physically and mentally ready for work, but faced challenges in seeking employment due to “poor communication because of hearing loss.” In a December 2004 Statement, the Veteran reported that he could not find an employer who would hire him because of his severe hearing loss and clinical depression. In an April 2005 Statement, the Veteran reported that he has had financial problems (his home was foreclosed and sold at a Sheriff’s sale, his truck was repossessed, and he no longer had a good credit rating) after losing his job due to poor communication from the hearing loss. In a March 2007 VA Form 21-8940, the Veteran reported no employment in the last five years. In an April 2007 email to clarify past employment history, the Veteran explained that he: had not been employed since 2002 except for a job lasting one day in 2004; worked for Schwan’s from December 1998 through Fall 2001, when he was fired; worked for Brink’s for a few months in early 2002, but was fired; and worked for Sara Lee for one day in 2004, but was fired after about six hours. In a February 2008 VA Form 21-8940, the Veteran reported: no substantially gainful employment since 2001; that he was fired from Schwan’s (failed company’s physical due to hearing loss; it was dangerous to allow him to drive an ice cream truck with hearing loss; he had many communication problems); and that he had marginal employment at Brink’s (only worked from February 2002 to March 2002). In April 2015, the Veteran underwent a VA aid and attendance/housebound examination; the examiner noted the Veteran’s report that he avoids going out to noisy places due to his hearing loss. In an April 2015 VA treatment note, an audiologist noted that the Veteran was fired from his job due to his hearing loss and that it affects his activities of daily living. In May 2015, the Veteran underwent a VA psychological examination; the examiner noted that he had treated the Veteran since 2001 and that “this patient has not obtained and maintained fully gainful employment for any significant period of time since November 2001.” The examiner further noted that, while depression is a major factor in the Veteran’s inability to gain and maintain employment, “his hearing loss is [also] a problem that has contributed to his depression because he is not able to hear correctly.” The Veteran submitted a January 2017 private vocational assessment by KP; the examiner described the Veteran’s difficulty obtaining and maintaining employment since 2001 due to his service-connected hearing loss. Specifically, the Veteran was reprimanded and fired from more than one job because of misunderstandings and inability to effectively communicate with coworkers and customers. The Veteran also reported that, because he must constantly read to compensate for his hearing impairment, he generally needs to take a break to rest his eyes every hour. The Veteran also reported that he attempted vocational rehabilitation, but was still unable to keep a job and was told by his counselor that he was unemployable due to his service-connected hearing loss and depression. The examiner ultimately opined that the Veteran had been unable to work in any capacity since November 2001 and that his hearing loss and depression has impacted his ability to work since 2002. The Veteran submitted a July 2019 private vocational assessment by PC; the examiner described the Veteran’s difficulty obtaining and maintaining employment since 2001 due to his service-connected hearing loss. Specifically, the examiner revealed that, due to the Veteran’s hearing loss: (a) he has difficulty understanding and communicating with others, especially if there is any type of background noise or conversation; (b) he would not be capable of performing the types of jobs he previously held due to his inability to communicate effectively with others, understand oral instructions, provide oral instructions, and interact with others in a safe and effective manner, especially with the presence of any type of background noise; (c) he would more likely than not require workplace accommodations that most likely would not be tolerated by an employer; (d) he would more likely than not be unable to develop relationships with coworkers, supervisors, or the public as required to maintain substantial gainful employment; and (e) he is more likely than not to experience excessive absenteeism, unscheduled absences, and difficulty in the performance and maintenance of required pace and production demands required with substantial gainful employment at any level. The examiner ultimately opined that the Veteran had been unable to maintain a substantially gainful occupation on a regular and consistent basis since 2001, when he was fired from his route sales job due to hearing loss. Based on the evidence above, the Board finds that the Veteran’s service-connected hearing loss has precluded obtaining and maintaining a substantially gainful occupation since its effective date of service connection on May 30, 2002. Specifically, the Board highlights that, the Veteran consistently and credibly established a pattern of work-related complications due to his hearing loss that resulted in termination. Further, since at least May 30, 2002, the severity of the Veteran’s hearing loss has prevented the mental and physical acts required to obtain and maintain a substantially gainful occupation due to his hearing loss, even after attempting vocational rehabilitation into an occupational field requiring less hearing ability. Crucially, the Veteran’s hearing loss produces such severe occupational limitations that he would be unable to: understand or communicate effectively or safely with others; work without accommodations, excessive absenteeism, or unscheduled absences that would most likely exceed those allowed by typical employers; and perform and maintain pace and production demands required at any level of substantial gainful employment. Thus, because the Veteran’s service-connected hearing loss has precluded obtaining and maintaining a substantially gainful occupation since its effective date of service connection on May 30, 2002, the Board grants extraschedular TDIU effective May 30, 2002. Notably, May 30, 2002, is the earliest effective date of service connection for any of the Veteran’s service-connected disabilities (see February 2019 Codesheet); accordingly, it is the earliest effective date available for this grant. (CONTINUED ON NEXT PAGE) JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.