Citation Nr: 21002410 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-13 906 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities do not meet the minimum threshold criteria for a schedular TDIU. 2. The Board does not find a referral for extra-schedular consideration of a TDIU is not warranted. The Veteran’s service-connected bilateral hearing loss and tinnitus do not render him unable to maintain and/or obtain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1975 to September 1978. This appeal arises from a March 2013 rating decision denying service connection for bilateral hearing loss and a March 2014 rating decision denying a TDIU. In February 2018 and again in February 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and consideration. On remand, in a September 2020 rating decision, the AOJ granted service connection for bilateral hearing loss. As this determination constitutes a full grant of the benefits sought as to that claim, it is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. Entitlement to a TDIU The Veteran contends that he has not worked full-time since 2011 and that he is unemployable due to disabilities of a “fractured skull, neck, back and leg trauma”. See March 2013 TDIU application (VA Form 21-8940). The Veteran reports he is limited to a 12th grade high school education. See March 2013 TDIU application (VA Form 21-8940). The Veteran reports working in apartment maintenance for an apartment management company in 2010 and then in general housekeeping/service technician duties for the same employer in 2011. See December 2013 and January 2014 Employer Information responses (VA 21-4192). A TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16 (a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (CAVC/Court) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). After a review of the evidence of record, the Board determines that TDIU is not warranted, and that an extra-schedular referral is not warranted. In this case, the Veteran is service connected for bilateral hearing loss (10 percent) and tinnitus (10 percent), with a combined rating of 20 percent. The Veteran does not meet the schedular criteria for TDIU consideration under § 4.16 (a). Next, the Board finds that there is no indication that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation on a factual basis. See 38 C.F.R. § 4.16 (b). Specifically, he contends that his claimed residuals of a fractured skull, cervical spine disability, lumbar spine disability and neurological disability of the bilateral lower extremities (see February 2018 Board decision’s denials of these service-connection claims) prevent him from securing or following any substantially gainful occupation. However, these disabilities are not service connected. Moreover, there is no contention by the Veteran or his representative or any indication in the evidence supporting that the Veteran’s hearing loss prevents him from securing or following any substantially gainful occupation. In this case, the February 2013 VA examiner noted the Veteran’s hearing loss impacts work as he reported “missing important information on the job,” “not being aware of things around me at times,” and “having to concentrate with things phasing in and out for me.” The February 2013 VA examiner also reported his tinnitus is “aggravating.” Further, the March 2020 VA examiner noted the Veteran’s self-reported difficulty hearing on the phone and difficulty at work with his clients and colleagues and noted no functional impact due to his tinnitus. While the Veteran’s bilateral hearing loss and tinnitus appear to have had some impact on his occupational functioning, there is no indication that those disabilities prevented employment, including his previous job duties in apartment maintenance and general housekeeping, despite some hearing limitations. One employer’s report indicates that the Veteran left employment because of an expired leave of absence. The Board emphasizes that there is simply no contention that the Veteran’s hearing and tinnitus impairments alone preclude substantial gainful employment. As such, the Board finds that referral to the Director of Compensation on this basis is also not warranted. The Board concludes the evidence does not support the claim for a TDIU and there is no doubt to be otherwise resolved. The appeal for a TDIU is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.