Citation Nr: 21002328 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-44 243 DATE: January 13, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the Air Force from June 1971 to April 1975. This matter was previously before the Board in December 2018. At that time, the Board denied the Veteran’s claim for entitlement to a TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Memorandum Decision vacating the Board’s decision and remanding the claim back to the Board for further action. The Board notes that from January 9, 2020 forward, the Veteran is in receipt of a combined 100 percent schedular rating. The receipt of a combined 100 percent schedular rating does not render the issue of entitlement to a TDIU moot where the award of a TDIU based on a single disability may result in the Veteran being eligible for higher levels of compensation, specifically special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran is not in receipt of SMC from January 9, 2020 forward, and therefore the issue of entitlement to a TDIU from that date forward is not moot and still on appeal. 1. Entitlement to a TDIU In the above-mentioned December 2018 decision, the Board denied the Veteran’s claim for entitlement to a TDIU on a schedular and extraschedular basis. The Board noted that the Veteran’s service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment and that he would be able to perform simple, unskilled work that is self-paced, does not require social interaction, and does not require exposure to hazards. The Board listed examples of such occupations to include a housecleaner, yard worker, or laundry worker. In the June 2020 Memorandum Decision, the Court found that the Board’s statement of reasons and bases were inadequate because the Board failed to perform the correct analysis in determining whether the Veteran is capable of performing physical and mental acts required by employment, not whether the Veteran can find employment. The Court noted that the Board failed to explain whether the Veteran was capable of performing the physical acts required by the employment in any of the fields given that he was not trained for such work and his service-connected hearing disability impairs his ability to understand instructions and communicate with others. The Court also found that the Board failed to discuss whether such employment would require special accommodations that would render the employment marginal. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. The Veteran’s service-connected disabilities are bilateral hearing loss evaluated at 40 percent from October 19, 2010, to July 9, 2014, 60 percent from July 9, 2014, to October 1, 2018, 40 percent from October 1, 2018, to January 1, 2020, and 90 percent from January 9, 2020 forward; a skin disability evaluated at 30 percent disabling; tinnitus evaluated at 10 percent disabling; and hypertension evaluated as noncompensable from April 11, 2017, to October 10, 2019, and 10 percent from October 10, 2019 forward. The Veteran has a combined disability rating of 60 percent from October 19, 2010 to July 9, 2014, 80 percent from July 9, 2014, to October 1, 2018, 60 percent from October 1, 2018, to October 10, 2019, 70 percent from October 10, 2019, to January 9, 2020, and 100 percent from January 9, 2010. 38 C.F.R. § 4.25. Therefore, the Veteran meets the criteria for a TDIU from July 9, 2014, to October 1, 2018, and from October 10, 2019 onward. For the periods beginning from October 19, 2010, to July 9, 2014, and from October 1, 2018, to October 10, 2019, the Veteran does not have a single disability rated at 60 percent or more nor does a combined disability rating of at least 70 percent with a single disability rated at 40 percent. 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for the periods beginning from October 19, 2010, to July 9, 2014, and from October 1, 2018, to October 10, 2019, the Board must consider whether the Veteran is rendered unemployable due to his service-connected disabilities to warrant referral for extra-schedular consideration for TDIU under 38 C.F.R. § 4.16(b). The Board cannot address this question in the first instance, however. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Rather, it must be referred to the Director of Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). In a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in February 2011, the Veteran reported that he last worked in 2007 in manual labor. He indicated that he had an eighth-grade education. He asserted that his bilateral hearing loss prevented him from securing or following any substantial gainful occupation. A review of the Veteran’s claims file shows that he earned a GED during his active service. In November 2010, the Veteran was afforded a VA examination for his bilateral hearing loss. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in an inability to understand spoken instructions. In a March 2011 VA examination, the VA examiner noted that the Veteran’s actinic keratosis effected his usual occupation by causing a “lack of stamina,” and “weakness or fatigue.” The Veteran’s hearing loss was noted to affect his occupational activities by causing “decreased concentration,” and “poor social interactions.” In August 2011, the Veteran’s physician reported that his hearing aids magnify background noise so much that he gets little benefit. The Veteran was noted to have significant problems with hearing such that even with lip reading he has problems with comprehension. In October 2011, the Veteran’s degree of hearing loss was noted to cause significant communication problems, especially under adverse listening conditions. In May 2017, the Veteran was afforded a VA examination for his bilateral hearing loss. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in an inability to follow oral instructions. In September 2017, the Veteran was afforded a VA examination for his hypertension. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that during periods of rises in his blood pressure, the Veteran had increased anxiety levels and was unable to concentrate. In April 2018, the Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral hearing loss resulted in the Veteran missing work due to earaches, an inability to follow oral instructions, and an inability to hear safety warnings. In October 2019, the Veteran was afforded a VA examination for his hypertension where he reported “difficulty with coping in stressful situations or environments.” In January 2020, the Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus. The Veteran reported that “he could not understand what they were telling him to do in construction.” He added that “everything sounds like a blur, and hearing aids only magnify the blur.” In regard to his tinnitus, the Veteran reported that he could not concentrate, “and when he has to stay focused, he can’t because the tinnitus won’t let him.” Accordingly, the Board finds that in light of the above the evidence of record raises a possibility that the Veteran may meet the criteria for the assignment of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see Smiddy v. Wilkie, 32 Vet. App. 350 (2020). As such, remand is warranted so that the question of entitlement to an extraschedular TDIU for the periods beginning from October 19, 2010, to July 9, 2014, and from October 1, 2018, to October 10, 2019 may be referred to the Director of Compensation Service for consideration. The matter is REMANDED for the following action: Refer the claim of entitlement to TDIU for the periods beginning from October 19, 2010, to July 9, 2014, and from October 1, 2018, to October 10, 2019 on an extraschedular basis to the Director of Compensation Service for an extraschedular consideration under 38 C.F.R. § 4.16(b). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.