Citation Nr: 20056512 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 14-28 432A DATE: August 26, 2020 ORDER Entitlement to service connection for a psychiatric disorder, to include anxiety disorder and posttraumatic stress disorder (PTSD), is denied. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to January 15, 2020; and a disability rating in excess of 10 percent on and after January 15, 2020, is denied. Prior to May 8, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. On and after May 8, 2012, entitlement to a TDIU is granted. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for a psychiatric disorder, to include anxiety disorder and PTSD. 2. Prior to January 15, 2020, the Veteran had no worse than Level I hearing loss for the right ear and Level II hearing loss for the left ear. 3. On and after January 15, 2020, the Veteran had no worse than Level IV hearing loss for the right and left ear 4. Prior to May 8, 2012, the record has not established that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 5. On and after May 8, 2012, the Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a psychiatric disorder, to include anxiety disorder and PTSD, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss prior to January 15, 2020; and a disability rating in excess of 10 percent on and after January 15, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100. 3. Prior to May 8, 2012, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16. 4. On and after May 8, 2012, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from February 1945 to October 1946. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in June 2013 and May 2014. In decisions dated in December 2017 and August 2018, the Board remanded the case to the Agency or Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the RO substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). In July 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript from that proceeding is associated with the claims file. The Board notes that the August 2018 Board decision remanded the Veteran’s claim for an initial compensable rating for bilateral hearing loss. During the pendency of the appeal, a March 2020 rating decision awarded a 10 percent evaluation effective from January 15, 2020. As the assigned evaluations are less than the maximum available rating, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also remanded the Veteran’s service connection claims for a bilateral knee disorder; bilateral hip disorder; and a stomach disorder, to include gastroesophageal reflux disorder (GERD) and a hiatal hernia. The March 2020 rating decision later granted entitlement to service connection for patellofemoral pain syndrome with arthritis/arthrosis of the left knee and patellofemoral pain syndrome and strain with arthritis/arthrosis of the right knee, osteoarthritis/arthrosis of the right and left hip, and GERD with duodenal and gastric ulcers (claimed as stomach condition). The grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these issues are no longer before the Board. I. Duties to Notify and Assist The record reflects that the Veteran is in receipt of Supplemental Medical Insurance (SMI) from the Social Security Administration (SSA). See SSA Data received in June 2013. However, there is no indication that he receives SSA disability compensation. As such, the Board finds that a request for records from SSA is not warranted. See Golz v. Shinseki, 590 F.3d 1323 (Fed. Cir. 2010) (determining that there is no duty to obtain SSA records when there is no evidence that they are relevant). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Law and Analysis 1. Entitlement to service connection for a psychiatric disorder, to include anxiety disorder and PTSD, is remanded. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A diagnosis of a psychiatric disorder, to include PTSD, must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45, 094 (August 4, 2014). VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for VA Purposes, 80 Fed. Ref. 14,308 (March 19, 2015). As the RO certified the Veteran's appeal to the Board in April 2017, the DSM-5 is applicable in the present case. The pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). For stressors unrelated to combat that are not based on fear of hostile military or terrorist activity, credible supporting evidence is necessary in order to grant service connection. Such evidence may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Therefore, the Veteran's lay testimony, is insufficient, standing alone, to establish service connection. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Effective July 13, 2010, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device (IED); vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843, 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)(3). The Veteran contends that he has a psychiatric disorder, to include anxiety disorder and PTSD, that is related to his active duty service. The Board will first determine whether the Veteran has a current diagnosis for a psychiatric disorder. A VA examination related to the Veteran's claim was initially conducted in October 2013. The examiner noted that the Veteran did not met the DSM-IV diagnostic criteria for PTSD. Although the examiner found that the Veteran did meet the DSM-IV criteria for a diagnosis of anxiety disorder not otherwise specified (NOS), the examiner did not provide an opinion regarding this diagnosis. In addition, the Board finds that this assessment has minimal probative value as the examiner did not consider the DSM-5 criteria that are applicable in this case. An additional VA examination related to the Veteran’s claim was later conducted in January 2020. The examiner stated that the Veteran had no diagnosis for PTSD or any other mental health disorder under the DSM-5 or DSM-IV criteria. In an accompanying opinion, the examiner stated that the Veteran did not meet the criteria for a mental health disorder, to include anxiety disorder or PTSD. The examiner explained that although the Veteran experienced a stressful event, the Veteran did not develop PTSD as a result of this event. The examiner noted that the Veteran denied having any of the arousal symptoms associated with PTSD, and he stated that the emotional response he experienced resolved on its own after he returned. The examiner also observed that whenever the Veteran responded that he was experiencing negative emotions (i.e., frustration over the ringing in his ears), the examiner had attempted to identify any indicators of ongoing anxiety or depression. However, the presented reactions appeared normal in presentation and appropriate to the situation. In responding the Board's August 2018 remand directive to specifically address whether the Veteran has anxiety disorder NOS, the examiner further explained that the Veteran did not present with any examples of feeling anxious. Even with query, the Veteran did not identify an atypical amount or type of anxiety that would warrant a clinical diagnosis. In light of this finding, the examiner also responded to the Board's remand request to address the prior diagnosis of anxiety disorder NOS and explain why such a diagnosis was not warranted. The examiner stated that in order to receive a diagnosis of anxiety disorder, a person has to have anxiety such that it impairs their daily functioning to some degree. The examiner explained that there was no evidence of impaired functioning in the Veteran’s daily life. The Board finds that the examiner’s opinion is probative when considered with the other evidence of record as it addresses the relevant medical question at issue and was based on the psychologist's understanding of the Veteran's relevant history as well as his medical expertise. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion,"); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole in the context of the evidence of record). Apart from the prior diagnosis of anxiety disorder NOS that was addressed by the examiner, there is also no other medical evidence from the appeal period to indicate that the Veteran received a diagnosis for a psychiatric disorder. Consequently, the most probative evidence of record reflects that the Veteran has not received a diagnosis for a psychiatric disorder, to include PTSD or anxiety disorder, that conforms to the DSM-5 at any time during the appeal period or within close proximity thereto. See Martinez-Bodon v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1523, No. 18-3721 (Aug. 11, 2020); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran's contention that he currently has a psychiatric disorder. However, the Board finds that the Veteran is not competent to provide a diagnosis for such a disorder. Although it is error to categorically reject a lay person as competent to provide a diagnosis, not all questions of diagnosis are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a diagnosis depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In the instant case, the question of the whether the Veteran has a psychiatric disorder is not something that can be determined by mere observation. Nor is this question simple. While the Veteran is competent to report psychological symptoms, the question of the cause of those symptoms is not an observable fact. It requires clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause. Therefore, the Board finds that the Veteran's statements as to the etiology of his current complaints are not competent evidence of nexus or a diagnosis. Based on the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's service connection claim for a psychiatric disorder, to include anxiety disorder and PTSD. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable based on these facts. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that service connection is not warranted. 1. Entitlement to an initial compensable evaluation for bilateral hearing loss prior to January 15, 2020; and a disability rating in excess of 10 percent on and after January 15, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. § Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In contrast, for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). For both types of increased rating claims, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Such separate disability ratings are known as staged ratings. During the appeal period, the Veteran has been in receipt of an initial noncompensable evaluation for his bilateral hearing loss effective from May 7, 2012 to January 14, 2020; and a 10 percent rating on and after January 15, 2020. The disability is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § § 4.85) represents nine categories of decibel I loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation of the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V," and the poorer ear had a numeric designation of Level "VII," the percentage evaluation is 30 percent. 38 C.F.R. § § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § § 4.85(a). The provisions of 38 C.F.R. § § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In May 2012, the Veteran underwent a private audiological evaluation conducted by an audiologist. The provider noted the Veteran's report that the Veteran reported having trouble hearing normal conversational speech. The Veteran's post-discharge work consisted of working as a lineman for an electric company and in the fields of farming and ranching. The Veteran’s pure tone thresholds, in decibels, were recorded as: HERTZ 1000 2000 3000 4000 Average RIGHT 25 50 70 80 56.25 LEFT 25 50 70 80 56.25 The Veteran's word recognition score based on the Maryland CNC word list was 92 percent bilaterally. The test reliability was noted to be good. The provider recommended that the Veteran be reevaluated annually to monitor for further hearing loss, that he consider having a hearing aid evaluation to assist in communication, and that he use hearing protection in noisy areas. The Board notes that the puretone thresholds from this evaluation did not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the provider did not report that the use of a speech discrimination score was inappropriate for the Veteran. See 38 C.F.R. § 4.85(c). Consequently, the use of Table VIa is not indicated. Under Table VI, the Veteran's puretone threshold average and speech discrimination score yield a roman numeral of I for the right ear and the left ear. Table VII reveals that a noncompensable evaluation is appropriate for this combination of values. A VA examination related to hearing loss was later conducted in August 2012. The examiner noted that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that he had trouble hearing women, including his wife. He was also unable to hear when background noise was present. The Veteran’s pure tone thresholds, in decibels, were recorded as: HERTZ 1000 2000 3000 4000 Average RIGHT 30 50 65 75 55 LEFT 30 50 70 85 58.75 The examiner stated that the test results were valid for rating purposes. The speech discrimination score based on the Maryland CNC word list was 92 percent bilaterally. The examiner also stated that the use of the speech discrimination score was appropriate for the Veteran. The Board notes that Table VIa is not appropriate for these findings as they do not meet the criteria provided by 38 C.F.R. § 4.86, and the examiner did not report that speech discrimination was inappropriate for the Veteran. The application of the above values to Table VI yields a roman numeral of I for the right ear and II for the left ear. However, these numerals result in a noncompensable evaluation under Table VII. On January 15, 2020, the Veteran underwent an additional VA examination for his bilateral hearing loss disability. The examiner stated that the Veteran's hearing loss impacted ordinary conditions of daily life, including the ability to work. The examiner noted that the Veteran had trouble understanding others. The Veteran’s pure tone thresholds, in decibels, were recorded as: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 75 75 55 LEFT 25 55 80 80 60 The test results were noted to be valid for rating purposes. The examiner added that the use of speech discrimination score was appropriate for the Veteran, and his score based on the Maryland CNC word list was 76 percent bilaterally. In light of the examiner’s finding regarding the use of the speech discrimination score, and the fact that the thresholds from this examination do not meet the standards for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86, the application of Table VIa is not warranted. Table VI provides that a roman numeral of IV for the right and left ear is appropriate for the puretone threshold averages and speech discrimination scores from this examination. The combination of these numerals results in a 10 percent evaluation under Table VII. In this case, the January 15, 2020 VA audiological examination is the only evidence of record showing that the Veteran met the criteria for a 10 percent evaluation, but no higher, under 38 C.F.R. § 4.85, Diagnostic Code 6100. The record does not include any audiological testing prior to January 15, 2020 that demonstrates that the Veteran's bilateral hearing loss met the schedular rating criteria for a compensable evaluation. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable evaluation for his bilateral hearing loss prior to January 15, 2020; or an evaluation in excess of 10 percent on and after January 15, 2020. In reaching the above conclusions, the Board has considered the Veteran's lay assertions regarding the impact of his diminished hearing on his daily life. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule reflects that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. Consequently, no higher evaluation is warranted during the periods on appeal. The Board also acknowledges the Veteran's testimony from the July 2017 Board hearing indicating that he had some problems with equilibrium. See July 2017 Board Hearing Transcript (Tr.), page 27-28. The Veteran expressed his belief that this complaint could be attributable to his hearing loss, and he noted that he had experienced falls and received instructions from his doctor to use a cane to prevent injury. However, neither the January 2020 VA examination nor the other evaluations of record addressing the Veteran's hearing loss have suggested that the functional effects of his hearing loss disability include problems with equilibrium or balance. The Board also notes that at another point during the Board hearing, the Veteran and his representative indicated that the Veteran had recently fallen and currently used a cane as a result of his knee problems rather than his hearing loss. See Tr., page 3-4. Moreover, VA examinations that were conducted in January 2020 in relation to the Veteran's knee and hip disabilities noted that the Veteran's use of a cane as an assistive device was related to these disabilities. Consequently, the Board does not find that any separate evaluation is warranted for a balance impairment. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The regulations also provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § § 4.85(g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. 38 U.S.C. § 1114; 38 C.F.R. § § 3.350. Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. 1. Entitlement to TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As the Veteran's TDIU claim was raised in the context of his initial increased rating claim for his bilateral hearing loss disability, the appeal period begins on May 7, 2012. During the entire period on appeal, the Veteran has been in receipt of a 10 percent rating for tinnitus. As indicated above, the Veteran's bilateral hearing loss has been rated as noncompensable from May 7, 2012 to January 14, 2020, and as 10 percent disabling on and after January 15, 2020. Effective from May 8, 2012, the Veteran was awarded two separate 10 percent ratings for osteoarthritis/arthrosis of the right and left hip; and two separate 10 percent ratings for patellofemoral pain syndrome with arthritis/arthrosis of the left knee and patellofemoral pain syndrome and strain with arthritis/arthrosis of the right knee. The Veteran's disability ratings on and after May 8, 2012 also included noncompensable evaluations for limitation of extension of the right and left hip, and limitation of flexion of the right and left hip. As of August 1, 2013, the Veteran was additionally awarded a noncompensable rating for GERD with duodenal and gastric ulcers. The Veteran’s combined disability rating was 10 percent on May 7, 2012; 40 percent from May 8, 2012 to January 14, 2020; and 50 percent on and after January 15, 2020. Consequently, the Veteran's service-connected disabilities do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 239-40 (2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. this contention is rejected." Id. at 5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process."). Id. at 5 fn 4 (emphasis added). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). The Veteran contends that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, the Veteran has reported that he had to stop working as a result of his bad hips and knees. See August 2012 VA Form 21-8940. In terms of educational history, the record reflects that the Veteran has an eighth-grade education. See August 2012 VA Form 21-8940. The Veteran denied receiving any other type of education or training. The Veteran has reported that his recent work history consisted of self-employment in farm labor. See August 2012 VA Form 21-8940. Although the Veteran indicated that he may have engaged in some work in this field through 2003, the Veteran also reported that he last worked full time in 1992. The Board notes that this reported occupational history is consistent with the Veteran’s report from an October 2013 VA examination that he previously worked in farming, including a co-op, for 23 years. The Veteran also reported during that examination that he stopped working in 1992. As such, the record does not reflect that the Veteran has engaged in substantially gainful employment during the current appeal period. The Board also notes that sedentary employment is outside the Veteran's relevant work history and will not be considered as an alternative path to employment for purposes of this analysis. In addition to the information discussed above regarding the functional impairment associated with the Veteran’s bilateral hearing loss, the record includes evidence regarding the functional effects of his tinnitus. When the Veteran was provided with the May 2012 audiological evaluation, he described his symptoms of tinnitus as constant "crickets" in both ears. During an August 2012 VA examination, the examiner noted that the Veteran's tinnitus impacted the ordinary conditions of daily life, including the ability to work, as the Veteran reported that the ringing was distracting and caused him some difficulty in concentrating. In a subsequent January 2020 VA examination related to tinnitus, the examiner noted that the Veteran's tinnitus did not impact ordinary conditions of daily life, including his ability to work. During a January 2020 VA examination related to psychiatric disorders, the Veteran indicated that he could wake up due to ringing in his ears. The Veteran also reported that with the ringing in his ears, he was able to sleep for approximately 7 hours. In a November 2012 opinion, a VA examiner addressed the Veteran's TDIU claim based on the functional effects of his service-connected bilateral hearing loss and tinnitus. The examiner stated that the functional impact of these disabilities would be problems with understanding conversational speech and having to use visual cues to help with understanding spoken messages. These disabilities impacted the Veteran's communicative status by causing him some difficulty on the telephone, hearing clearly in meetings, and hearing clearly at a distance or in the presence of background noise for sedentary activities. Tinnitus can also cause difficulties with falling asleep in quiet environments. In conjunction with the subsequent January 2020 VA examination for hearing loss and tinnitus, the examiner provided an opinion noting that the Veteran reported that these disabilities typically interfered with word understanding in any type of competing noise. The examiner opined that the Veteran might have difficulty hearing spoken guidance, instructions, or comments from other workers while in noise. The Veteran could also have difficulty understanding phone conversations without the use of visual cues. However, the examiner found that once the Veteran understood the topic at hand, neither his hearing loss nor his tinnitus should interfere with him completing either physical or sedentary activities. During the July 2017 Board hearing, the Veteran indicated that his service-connected disabilities contributed to his decision to stop working. He explained that both his knees and stomach gave him trouble. The Veteran noted that he had a couple of falls, and he reported using a cane. When the Veteran was provided with a VA examination related to his knees in January 2020, the examiner noted that pain significantly limited the Veteran's functional ability with repeated use over a period of time. The Veteran also experienced related functional impairment in that it hurt to walk or stand for too long. In addition, the Veteran was unable to climb stairs. The Veteran also used a cane for his knee arthritis on a constant basis. During a January 2020 VA examination related to the Veteran's hips, the examiner noted that the Veteran had functional loss that consisted of being unable to walk very far or climb stairs due to pain in his hip. The examiner also stated that the Veteran required a cane to walk in relation to his hip arthritis. The examiner further noted that pain was present in the Veteran's left hip on rest/non-movement. The examiner opined that the Veteran's bilateral hip pain significantly limited his functional ability with repeated use over a period of time. The Veteran was also provided with a VA examination for his GERD disability in January 2020. The examiner stated that the Veteran had no current symptoms due to GERD. Consequently, the examiner opined that the Veteran's GERD did not impact his ability to work. After considering the foregoing evidence, the Board finds that a TDIU is not warranted for the one day period prior to May 8, 2012. The Veteran’s only service-connected disabilities on May 7, 2012 were his bilateral hearing loss and tinnitus. The Veteran has not contended that he was unable to secure or follow substantially gainful employment solely as a result of these disabilities. The Veteran has instead indicated that his subsequently service-connected knee, hip, and stomach disabilities were the basis for his TDIU claim. In addition, the evidence does not support that the functional effects of these disabilities alone rendered the Veteran unable to secure or follow substantially gainful employment. While the Board acknowledges the communication difficulties related to hearing loss and tinnitus that were reported by the Veteran and identified by the VA examiners, the Veteran has not reported that these issues caused him significant problems in his occupational history of working in farm labor. Moreover, the record does not show that the Veteran’s difficulties with understanding conversation or verbal instructions as a result of these disabilities prevents him from using and understanding written communication. In this regard, the Veteran’s educational history and written statements in the record reflect that he can read and write. The January 2020 VA examiner also opined that the Veteran would not be prevented from completing physical activities as a result of his hearing loss and tinnitus once he understood the topic at hand. The Board finds that this opinion is probative as it was based on the examiner’s expertise and evaluation of the Veteran. Although both the November 2012 VA examiner and the Veteran reported that his tinnitus could affect his ability to sleep, the Veteran indicated that he was still able to sleep for approximately 7 hours a night. He did not suggest that his daily functioning was significantly affected by any associated fatigue. To the extent that the Veteran also reported concentration difficulties related to tinnitus, he did not indicate that the severity of this complaint rendered him unemployable. The weight of the evidence does not demonstrate that the Veteran’s hearing loss and tinnitus caused him to be physically or mentally unable to secure or follow substantially gainful employment on May 7, 2012, the one day of the appeal period prior to May 8, 2012, in light of his education and occupational experience. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990) In reviewing the evidence on and after May 8, 2012, the Board has determined that no type of employment would appear to be appropriate for the Veteran in light of his functional capacity and work experience. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence shows that the Veteran required a cane to ambulate as a result of his service-connected knee and hip disabilities. The Veteran was also unable to walk or stand for any meaningful length of time, and he could not climb stairs. The Veteran’s July 2017 Board hearing testimony additionally indicates that the symptoms of his knee and hip disabilities have been consistent in their severity throughout the appeal period. The Board finds that these types of functional impairments render the Veteran unable to perform the types of activities associated with physical employment. As indicated above, neither the Veteran’s work nor educational history suggests that any other type of employment would be appropriate for the Veteran. The Board also notes that the Veteran appears able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. In addition, a Veteran does not have to prove that he is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Based on the probative evidence of record, and resolving all benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, and a TDIU is warranted on and after May 8, 2012. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.