Citation Nr: 21004979 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 792A DATE: January 28, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extra-schedular basis is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability on an extraschedular basis due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to May 1969. The Veteran was awarded the Combat Infantryman Badge and Vietnam Campaign Medal, among other decorations, for his service. The Veteran submitted an initial increased compensation claim based on unemployability in February 2020. Prior to that the Board in a January 2020 remand, having determined that extraschedular TDIU was raised by the record, referred the issue to the Director of Compensation Service for an extraschedular TDIU opinion. Extraschedular TDIU was denied by the RO in an October 2020 Supplemental Statement of the Case (SSOC). The Veteran testified before the undersigned at a hearing held in March 2017; a transcript of that hearing is of record. The issue of extraschedular TDIU is back before the Board for appellate adjudication. 1. Entitlement to an extraschedular total disability rating based on individual unemployability due to service-connected disabilities The appellant contends that entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is warranted. The Veteran asserts that his severity of hearing loss and tinnitus precludes him from gaining and maintaining substantial employment both physically and sedentarily. As stated above, the Veteran testified at his March 2017 Board hearing before the undersigned that he has been unemployed since 2005. However, for the reasons set forth below, the Board finds that the preponderance of the current evidence of record weighs against a finding that the Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment. Where a Veteran’s schedular rating has been evaluated at less than 100 percent, total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or to follow a substantially gainful occupation as a result of one or more service-connected disabilities and without regard to advancing age or any nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Under 38 C.F.R. § 4.16(a), a determination concerning unemployability must be made based on service-connected disabilities alone; nonservice-connected disabilities must be disregarded. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Even if the record contains evidence that a Veteran’s unemployability is a result of other nonservice-connected factors such as age or nonservice-connected conditions, a finding must still be made, without regard to the nonservice-connected conditions, as to whether the Veteran’s service-connected disabilities are sufficiently incapacitating as to render him unemployable. See id. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. See 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is any impairment of mind or body which is sufficient to render it impossible for the average person to secure or to follow a substantially gainful occupation. See 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment of earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. See id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. See 38 C.F.R. § 4.16(a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). The ability to work only a few hours a day or only sporadically does not qualify as an ability to engage in substantially gainful employment. See id. Marginal employment shall generally be deemed to exist when a Veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. See 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a fact found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. See id. Consideration must be given in all claims to the nature of the employment and the reason for termination. See id. The Veteran does not qualify for schedular consideration, because certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the other disabilities sufficient to bring the combined rating to 70 percent or more. See id. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. See id. Unemployability in this context involves the incapacity to perform the physical and mental acts required by employment, without regard to whether the Veteran can find employment generally. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case the Veteran is currently in receipt of a combined disability evaluation of 30 percent, effective September 17, 2018, to include the following: (1) a 20 percent evaluation for an acquired bilateral hearing loss effective September 17, 2018; and (2) a 10 percent evaluation for tinnitus, effective July 26, 2011. The Veteran’s combined evaluation for compensation previously totaled 10 percent from July 26, 2011. Accordingly, the Veteran does not meet the schedular rating criteria for a TDIU under Section 4.16(a)(4). Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), a TDIU may be granted alternatively on an extra-schedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. However, the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. The Board previously remanded the claim in January 2020 for the Director to provide an initial adjudication. The Board has jurisdiction to review the entirety of the Director’s decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Although the Board is required to obtain the Compensation Service Director’s decision before awarding extraschedular TDIU benefits in the first instance, see Bowling, 15 Vet. App. at 10, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). Thus, as the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (b) has been remanded and referred to the Director, and the Director has issued a decision, the issue is now before the Board and must be addressed on the merits. The lay evidence in this case came in mostly through the March 2017 Board hearing. The Veteran shared the issues he experiences due to his service-connected disabilities and how they affect his employment prospects and his social and family life. He has great difficulty hearing especially when in a crowd, and at any distance greater than a few feet away. Although he has effective hearing aids, he cannot wear them all the time, and prefers to take them out as much as possible, because they are uncomfortable. When asked if he stopped work due to trouble hearing people, The Veteran shared that he retired in 2005 after 27 years work for a Phoenix manufacturer because, “I had 27 years in.” The October 2020 advisory opinion from the Director of Compensation Service is that although communication would be difficult due to service-connected hearing loss and tinnitus, it is not precluded, and these disabilities do not render the Veteran unable to secure or follow gainful employment, or would make the Veteran unable to perform physical or sedentary tasks. From the September 2018 VA audiology examination, when asked how hearing loss impacts his ordinary conditions of daily life, including his ability to work, the Veteran said, “Over the years it has been a task to hear at my jobs and with my family. After the TET Offensive I didn't have hearing for a week, and it hasn't been the same since.” And when asked about tinnitus’ impact, “the ringing is very bothersome and affects hearing at home and on the job.” At the August 2015 hearing exam, the Veteran said his hearing loss was hard on his relationship with his wife. He cannot wear hearing aids 24/7, and some days he does not wear them. They argue daily because he cannot hear what she says. His tinnitus is also a problem. He describes it as cricket and locust noise 24/7. For him it is worse in a quiet place. If he is working, his mind is off it. In the mornings or when he tries to go to bed, he hears it. Additionally, at the time of the hearing, the Veteran was volunteering as the adjutant, taking minutes from meetings at his local Veteran of Foreign Wars (VFW) chapter. His service-connected disabilities make his part-time volunteer work difficult, but he overcomes this by sitting close to the main speaker, use of hearing aids, and a recorder. Another tool that was discussed that could be implemented was use of a wireless microphone for those speaking at meetings. The Veteran records the meetings, then transcribes from the recordings to make minutes for each meeting later. The Board finds the evidence does not suggest that the Veteran’s service connected disabilities prevented him from obtaining or maintaining substantially gainful employment. The Veteran has a long and successful work history, with two years of college and vocational attainment. While he is no longer employed full time, the fact that a veteran is not employed is not enough. In this case, the evidence does not reflect that the service connected hearing loss and tinnitus prevented the Veteran from securing and following gainful employment. There are no peculiar negative effects of his service-connected disabilities on occupational activities to speak of, and the Veteran has no other physical or mental endowment issues preventing the usual amount of success in overcoming the handicap. As outlined above, he has described the impact of the hearing loss and tinnitus on his employment for years and also described how he worked around the issue by sitting closer to people and using other tools to assist him in hearing better. While the Board acknowledges that the Veteran’s service-connected disabilities result in some limitations, he has no service-connected impairment prohibiting employment, according to the competent evidence of record. Furthermore, as noted above, the Veteran has the education level to perform sedentary employment. Additionally, the records reflect that the Veteran attributed his stopping work to having enough years to retire. Accordingly, for the foregoing reasons, the Board concludes that a preponderance of the evidence of record weighs against a finding that the Veteran’s service-connected disabilities render him unable to secure or to follow substantially gainful employment. In reaching this conclusion, the benefit of the doubt has been considered; however, because a preponderance of the evidence of record weighs against the Veteran’s claim, the Veteran’s claim for extraschedular TDIU due to bilateral hearing loss and tinnitus is denied. 38 C.F.R. § 4.16(b). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.