Citation Nr: 21001176 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 09-29 281 DATE: January 7, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include as on an extraschedular basis, prior to October 1, 2015 is denied. FINDING OF FACT For the appeal period prior to October 1, 2015, the Veteran’s service connected disabilities do not render him unable to secure or follow a substantially gainful occupation and there were no exceptional factors from the Veteran’s service connected disabilities that precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW Prior to October 1, 2015, the criteria for a TDIU, to include as on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1979 to August 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of this appeal is currently with the RO in Los Angeles, California. This case was most recently before the Board in January 2017, at which time the appeal for a TDIU was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The Board also denied a claim for an increased rating for bilateral hearing loss in that January 2017 decision. Specifically, the Board directed that the AOJ refer the claim for a TDIU to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Such a referral was completed January 2019. On remand, the AOJ granted entitlement to a TDIU on a schedular basis beginning October 1, 2015. As this does not represent a full grant of the issue on appeal, the claim has been recharacterized accordingly. The Board finds that the AOJ substantially complied with the January 2017 remand directives, and the claim is properly returned to the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The case has now been returned to the Board for appellate action. The Veteran testified in October 2015 before a Veterans Law Judge at a video conference hearing and a hearing transcript is of record. The Veterans Law Judge who conducted the October 2015 hearing is no longer employed at the Board. In a February 2020 letter, the Veteran was informed that the Veterans Law Judge who conducted the October 2015 hearing was no longer employed at the Board, was given the opportunity to request another hearing and was informed that the Board would assume that he did not want another hearing if a response was not received within 30 days. The Veteran did not respond to this letter and the Board will proceed accordingly. The Board notes that that a March 2019 supplemental statement of the case addressed the issues of entitlement to a TDIU based on an extraschedular basis as well as entitlement to an increased rating for bilateral hearing loss. However, the claim for an increased rating for bilateral hearing loss was finally denied by the Board in its January 2017 decision and this issue is not on appeal. Entitlement to an Extraschedular TDIU The Veteran seeks entitlement to TDIU prior to October 1, 2015 to include as on an extraschedular basis. The Veteran contends that he has been unemployable solely due to his service-connected hearing loss and tinnitus because he was unable to communicate effectively at work since he filed his claim for an increased rating for his bilateral hearing loss. See Appellate Brief, December 10, 2019. Additionally, his representative argues that the Veteran should be granted entitlement to a TDIU prior to October 1, 2015, because he was granted entitlement to a schedular TDIU from October 1, 2015 based on his hearing loss and tinnitus, and that the increased rating for his hearing loss should be granted an earlier effective date back to the original date of claim in August 2007. See Appellate Brief, December 20, 2019. As noted above, the issue of an increased rating for hearing loss is not before the Board. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration 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). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In evaluating a veteran’s employability, consideration may be given to the level of education, special training and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The claim for a TDIU prior to October 1, 2015, to include as on an extraschedular basis, stems from an August 2007 claim for increased rating for his bilateral hearing loss. See Third Party Correspondence, August 31, 2007; see also VA Form 21-4138 Statement in Support of Claim, August 31, 2007. Prior to October 1, 2015, the Veteran was service connected bilateral hearing loss (rated as 10 percent disabling prior to June 4, 2001, and 40 percent thereafter); and tinnitus (rated as 10 percent disabling). His combined ratings are as follows: 20 percent disabling prior to June 4, 2001 and 50 percent thereafter. Thus, prior to October 1, 2015, he does not meet the schedular criteria and a TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). Turning to the evidence, the record reflects that the Veteran’s usual occupation in security and that he was unemployed during the appeal period. See Board hearing transcript, October 1, 2015. At his October 2015 Board hearing, the Veteran testified that his hearing loss affected his daily life, to include interference with conversations with his family and that he sweats a lot so that he could not wear his hearing aids, and then had additional difficulty with hearing. He testified he last worked three years prior in security and that he could no longer do the work due to his hearing loss. At a January 2016 VA examination for his hearing loss and tinnitus, the Veteran reported that his tinnitus got in the way of his hearing and that his hearing loss made it very difficult to hear with noise, and that understanding words could get distorted. He stated he needed to wear hearing aids, read lips, and use cute in order to understand speech. The examiner noted that the audiological evaluation revealed bilateral severe-profound sensorineural hearing loss with fair word recognition scores; and that the Veteran would have communication difficulty at work. The examiner noted that hearing in crowd and in noise was very challenge, and the Veteran relied on lip reading cues to understand speech. Additionally, the examiner noted that communication difficulty with poor word recognition scores made it hard to understand words without the help of hearing aids and lip reading. However, the examiner noted that “no amount of hearing loss or tinnitus prevents anyone from being employable.” At a February 2016 VA examination for a social work and industrial survey, in pertinent part, the Veteran reported his last job was in security and he completed two years of college prior to the military. He reported he would like to continue working but could not because of all of his physical problems and especially because of his hearing problems. He last worked as a security guard for a homeless shelter. He was not working at an occupation or position that was below his education and training level. The Veteran was not able to work currently and the Veteran had significant hearing problems. The last employer allowed the Veteran to wear his hearing aids but he reported that even that was not enough for him to sustain employment. The examiner noted that the specific medical causes of his unemployment included hearing problems, neuropathy, and back problems. The Veteran reported he struggled with his hearing loss since the military, and that it had gotten worse making it impossible for him to sustain gainful employment. In a March 2016 addendum, the Veteran reported that he was retired because of his hearing loss, tinnitus, back pain, and neuropathy. He expressed no strong desire to work and inferred that his life was fine as it was. His last job was in 2012 as a security officer. He mentioned that even using his hearing aids, he was not successful in his work. At a June 2017 VA examination for a social work and industrial survey, in pertinent part, the Veteran reported he was unable to drive because of his hearing loss and other medical problems and he was observed to use a walker for locomotion. The examiner noted that the Veteran had definite problems with his hearing, had to face him and “practically shout.” The Veteran reported he had “more impaired” hearing and that was noticed by the examiner. He reported that he had been more withdrawn largely because of the difficulty in communication due to his hearing loss. He worked steadily but did nothing involving telephone work and he struggled with hearing problems throughout his working career. He reported being somewhat depressed and anxious because of his difficulty communicating. His attitude toward employment was that he enjoyed working but always had problems due to his hearing loss, and that the last few years were particularly stressful due to his hearing loss. The Veteran reported that he took early retirement because it was “close to impossible to do any type of work with his pronounced hearing loss,” and that he was very stressed the last few years of work due to the loss and feelings of incapacity. He was allowed to wear his hearing aids during his security work but that it made it very stressful because his hearing was still pronounced even with his aids and that he had to remove the aids when the weather was warm because his ears would sweat and often short out the batteries. The June 2017 VA examiner noted that social and occupation stressors were due to his hearing loss and tinnitus and that the economic problems were due to his inability to continue working. The examiner noted that the Veteran’s speech was loud but otherwise normal, that he he moved around in attempts to hear and that it was clear the Veteran was reading lips even though the examiner tried to speak loudly. Medical causes of unemployment were impaired hearing, tinnitus, congestive heart failure, and cardiomyopathy. The June 2017 VA examiner opined that the Veteran was no longer able to sustain gainful employment because of significant medical problems. The hearing loss and tinnitus were the cause of his leaving his last employment. Due to the nature of the job, it became evident to him that he was more of a security risk as opposed to being a security guard and that even with hearing aids, he still needed people to look him in the face and speak very loudly. It was so stressful for him that he had to leave. The examiner noted the January 2016 VA examiner opinion that “no amount of hearing loss or tinnitus prevents anyone from being employable,” and stated in response “what kind of work would a fairly uneducated, inexperienced, over 50 year old man do when he is unable to communicate with others?” The examiner noted that the Veteran’s hearing loss had worsened and that his other medical problems mentioned had become more serious. Therefore, the examiner opined that the Veteran was no longer able to sustain gainful employment because of his “severe-profound sensorineural hearing loss” along with his other impairments. In January 2017, the Veteran’s claim was referred to the Director of Compensation for consideration of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) by the Board. The Director of Compensation Service issued an advisory opinion in January 2019. The January 2019 advisory opinion noted that service connection was in effect for bilateral hearing loss and tinnitus as noted above. The opinion noted that VA examination findings revealed that hearing loss had been appropriately evaluated for all time periods and none of the available evidence showed hospitalizations, surgeries, or emergency room visits due to his hearing loss or tinnitus. Therefore, the opinion found that there was no unusual or exceptional disability pattern that had been demonstrated that would render application of the regular rating criteria as impractical; and therefore, the evidence did not support the contention that the Veteran’s service connected disabilities prevented all types of gainful activity prior to October 1, 2015. Accordingly, after a review of the medical and lay evidence presented in the light of the Veteran’s education, training, and work history, the Board finds that the overall evidence failed to support the contention that any of the service connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented the Veteran from obtaining and maintaining employment prior to October 1, 2015. In this regard, the Veteran himself has asserted that he was unable to work as a result of the combination nonservice connected and service connected disabilities that include his hearing loss, tinnitus, back, and neuropathy. The January 2016 VA examination report indicates the Veteran had significant hearing loss that would interfere with communication at work. However, the examiner opined that no amount of hearing loss or tinnitus would prevent anyone from being employable. Additionally, at a February 2016 social work and industrial survey, the Veteran reported he stopped working due to a combination of physical problems and mostly his hearing loss. Specifically, the examiner noted in February 2016 and in a March 2016 VA examination addendum report, the Veteran retired due to a combination of his hearing loss, tinnitus, back, and neuropathy. Further, although the June 2017 VA examination report indicates the Veteran was unemployable as a result of his hearing loss, the examiner also noted that the causes of unemployment were impaired hearing, tinnitus, congestive heart failure, and cardiomyopathy. As noted in the advisory opinion from the Director of Compensation service, the Veteran’s bilateral hearing loss was appropriately evaluated during all periods; and none of the available evidence showed hospitalizations, surgeries, or emergency room visits due to his hearing loss or tinnitus. Therefore, the opinion found that there was no unusual or exceptional disability pattern that had been demonstrated that would render application of the regular rating criteria as impractical and therefore, the evidence did not support the contention that the Veteran’s service connected disabilities prevented all types of gainful activity prior to October 1, 2015. As such, the Board finds that the evidence indicates that the Veteran has difficulty as a result of his bilateral hearing loss and tinnitus. The Board notes that the Veteran reported he had difficulty with his hearing aids and that on warm days he would have to remove his hearing aids due to sweat. However, there is no indication that such limitations would impact his ability to perform all gainful activity prior to October 1, 2015. Additionally, the Veteran was not service connected for any disorders of the heart, back, or neuropathy at any time. As noted in the advisory opinion from the Director of Compensation Service and the VA examination reports of record, the Veteran was shown to have an employment handicap due to both nonservice-connected and service-connected disabilities. The Board notes the arguments of the Veteran’s representative in the December 2019 submission that a TDIU prior to October 1, 2015 is warranted because the Veteran’s bilateral hearing loss rendered him essentially unable to work from the date he filed his claim for an increased rating. Specifically, the representative appears to argue that the Veteran should be granted a TDIU prior to October 1, 2015 because the increased rating for bilateral hearing loss should have an earlier effective date of August 2007. However, the Veteran’s appeal is limited to the considerations of entitlement to a TDIU, to include as on an extraschedular basis, prior to October 1, 2015. The claims for an increased rating for his bilateral hearing loss, and for an earlier effective date for such, are not presently before the Board; and those claims are not for adjudication. Rather, the Director of Compensation found the Veteran’s bilateral hearing loss was appropriately evaluated throughout all periods. This argument is therefore without merit. The Board acknowledges that the Veteran was limited in his ability to perform some physical employment; however, there is no indication from the record that the Veteran was precluded from employment solely as a result of his service connected disabilities. In fact, as noted above, the evidence of record to include the Veteran’s own statements indicates that the Veteran was unable to work as a result of both nonservice connected disabilities and his service connected disabilities. While the fact that nonservice connected disabilities also impacted the Veteran’s ability to work does not preclude a finding that the Veteran would have also been unable to work solely as the result of a service connected disability, that is not the case for this Veteran. It cannot be determined with any certainty that the Veteran would not have been able to successfully continue working if he was only impaired by his service connected disabilities. Instead, the evidence consistently shows the Veteran was unable to obtain and maintain gainful employment due to his hearing loss, tinnitus, heart, back, and neuropathy. (Continued on the next page)   Ultimately, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Here, the evidence is not sufficient to show that the Veteran could not have performed the physical and mental acts required by employment prior to October 1, 2015. The Board has considered the combined effects of the disabilities. The bilateral hearing loss and tinnitus may tend to combine to be more restrictive than the disorders individually and the evidence shoes a somewhat significant impact on employability. However, the most probative evidence shows the Veteran’s unemployability resulted from a combination of his hearing loss as well as nonservice connected back, neuropathy, and heart disorders. Consequently, the preponderance of the evidence is against a finding of unemployability and the claim for a TDIU prior to October 1, 2015 must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for the appeal period prior to October 1, 2015 is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.