Citation Nr: 21003528 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 10-27 971 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence does not show that the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU due to the Veteran’s service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to November 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a November 2014 video conference hearing before the undersigned Veterans Law Judge. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Under 38 C.F.R. § 4.16(a), if a veteran is only service connected for one disability, that disability must have a rating of 60 percent or more; if the veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). VA will refer to the Director of the 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 requirements set forth in 38 C.F.R. § 4.16(a). In this case, the Veteran was granted a 100 percent rating for a service-connected bilateral hearing loss disability effective March 22, 2018. Although a 100 percent rating does not necessarily render a claim of entitlement to TDIU moot, TDIU can only be awarded if it is supported by a separate disability independent of the 100 percent disability rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). The question before the Board is whether the Veteran is entitled to TDIU from the date he filed his original claim for TDIU on October 13, 2010. From June 2010, the Veteran was rated at 0 percent for Gilbert’s syndrome, 10 percent for vertigo and 10 percent for tinnitus for a combined 20 percent rating. From June 2011, the Veteran’s combined rating went to 40 percent after being rated at 20 percent for bilateral hearing loss. The Veteran was eventually granted a disability rating for Gilbert’s syndrome of 10 percent from February 2016. However, the Veteran’s combined rating was still 40 percent. The Veteran was then rated at 100 percent for his bilateral hearing loss disability from March 22, 2018. Additionally, the Veteran was found to be entitled to special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of deafness of both ears, having absence of air and bone conduction from March 22, 2018. In May 2018, the Board remanded the Veteran’s TDIU claim for referral to the Director of Compensation Service for extraschedular consideration. In July 2020, the RO sent its recommendation for denial to the Director of Compensation. In an October 2020 decision, the Executive Director stated that the evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board's scope of review of the Director's decision, and the Board shall be the final authority on all benefits decisions under 38 U.S.C. § 7104(a). As such, the Board will make its own determination regarding whether TDIU on an extraschedular basis is warranted. In July 2005, the Veteran was granted Social Security Administration (SSA) disability due to affective (mood) and anxiety-related disorders, with an effective date of December 31, 2001. Service connection is not in effect for any psychiatric disorders, however. During a urology consult at a VA medical center in March 2010, the Veteran was found to have low testosterone and had a loss of energy. The VA urologist felt the Veteran would benefit from supplemental testosterone. VA records also indicate the Veteran did receive a testosterone shot in May 2011. A VA examination for the Veteran’s hearing loss and tinnitus from June 2011 noted the Veteran’s functional impairment was the inability to understand most conversations. The Veteran also had a VA examination in June 2011 for his Gilbert’s syndrome. The examiner found that the Veteran’s Gilbert’s syndrome did not cause functional impairment regarding employment and there was no functional limitation of standing or walking. During the examination, the Veteran reported that he was an aircraft mechanic for 25 years. Private medical records from July 2011 show the Veteran spent most of his time doing auto body painting in his shop at home. During an August 2011 appointment, the Veteran was found to have been receiving testosterone replacement. In January 2012, the Veteran reported that he worked in his body shop and planned to remodel his home in the next 3-4 years. In June 2012, the Veteran reported that he was staying active by restoring old cars in his shop. The Veteran told his private doctor that working on the cars helped his depression. In May 2014, the Veteran reported that he remained focused on auto restoration for his home-based business. In November 2014, the Veteran testified that due to his Gilbert’s syndrome, he fatigued easily and progressively worsened with more strenuous activities. The Veteran stated he has weakness in his hands and legs with constant pain in his back. The Veteran also state that his vertigo caused an inability to maintain an upright position that lasts anywhere from 45 minutes to a couple of hours. His symptoms are more pronounced in the evening versus the daytime. The Veteran said these symptoms have been present since service. The Veteran testified that he was usually able to stand for around a half hour because he would have pain in his back, and his legs weakened. The Veteran stated he was only able to sit for probably 10 minutes. The Veteran had a hard time walking due to the inability to stay upright. He does not perform housework and leaves the house around one time a month for doctor visits. In a private doctor note from December 2014, the Veteran reported that he had reduced time for working in his auto body shop at home due to no heat source. In April 2015, the Veteran reported that he was not working in his auto body shop due to very few work orders. In September 2015, the Veteran was noted to have received testosterone replacement therapy. In January 2016, the Veteran reported loss of consciousness and dizziness. The Veteran was found to have an irregular gait. The private doctor noted syncope and collapse. The Veteran was afforded a VA examination in February 2016 for Gilbert’s syndrome. The examiner found the Veteran experienced intermittent fatigue with no incapacitating episodes during the last 12 months. The examiner noted functional impairment of no heavy exertion due to Gilbert’s syndrome and noted that bouts of dizziness were not related to the Gilbert’s syndrome In an October 2016 statement, the Veteran stated that he is unable to obtain and maintain gainful employment due to degenerative arthritis of the lumbar spine with status post fusion surgery, scar, degenerative changes of the cervical spine, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity. However, these are not service-connected disabilities for the Veteran. The Veteran was afforded VA examinations for hearing loss and vertigo in September 2017. The examiner noted function impairment with hearing loss and tinnitus as difficulty in understanding conversation, sleep, and concentration. The examiner found that the Veteran was almost completely deaf and was almost unable to use the telephone. The examiner noted that due to vertigo, the Veteran had balance problems that would preclude working around dangerous equipment or heights. The Veteran submitted a statement in November 2017 and wrote that he had 2-4 episodes of imbalance each day lasting up to 20 seconds at a time. The Veteran claimed his Gilbert’s syndrome had an impact on his ability to work because his symptoms were exacerbated when the weather was hot and humid. The Veteran was afforded a VA examination for hearing loss and tinnitus in April 2018. The examiner noted that due to tinnitus, he had difficulty distinguishing between sounds. The Veteran reported that he needed to be able to read lips to understand speech. As a result of the April 2018 VA examination, the Veteran was rated at 100 percent for bilateral hearing loss with an effective date of March 22, 2018. In July 2020, the Veteran submitted a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran noted his last date of employment was December 31, 2001 with an aerospace company. The Veteran reported that he had completed one year of college and he did not have any other education and training before or after he became too disabled to work. No information was provided about his home auto body shop in this application, however. The Board is aware that the Veteran has been in receipt of SSA benefits since 2001 and has reported that his service-connected disabilities alone are of such severity as to fulfill the TDIU criteria on an extraschedular basis. The Board finds, however, that the primary disability calling into question whether the Veteran is able to secure or follow a substantially gainful occupation is his psychiatric disability, for which service connection is not in effect. The evidence of record, on balance, does not show that his four service-connected disabilities in and of themselves rendered him unable to secure or follow a substantially gainful occupation prior to March 22, 2018, or that the disabilities other than hearing loss rendered the same after that date. See Bradley, supra. The Board acknowledges that each of these disabilities has had an effect on employment, but such effect is contemplated by the assigned ratings over the course of this appeal. The Board also notes that the Veteran ran a home auto body shop at least until 2015, although regrettably he provided no information about this in his July 2020 VA Form 21-8940. The Board is aware that the VA examination from September 2017 shows that the Veteran was experiencing serious functional limitations due to his hearing loss. He was almost completely deaf and unable to use a telephone. In addition, he was found to be precluded from working around dangerous equipment or heights. Again, however, given the absence of information about the Veteran’s home auto body shop in his July 2020 VA Form 21-8940, the Veteran has not provided enough information about his employment history for the Board to reach the conclusion that he is precluded from securing and following a substantially gainful occupation. Overall, the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.