Citation Nr: 21062970 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-48 528 DATE: October 12, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected bilateral hearing loss and tinnitus did not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU due to service-connected bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1959 to September 1962; and had periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA) in the Navy Reserve. He died in July 2016. The appellant, who is his surviving spouse, has been named as a substitute. This matter come before the Board on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and February 2020, this matter was before the Board and remanded, with the latter for referral to the Director of Compensation Service for determination as to whether the assignment of a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b). In May 2020, the Veteran's TDIU claim was referred for extraschedular consideration, and an advisory opinion issued. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the issue of entitlement to a TDIU on an extraschedular basis is properly before the Board at this time. The matter has been returned to the Board for further appellate proceedings. TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. The Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Entitlement to TDIU The appellant maintains the assertion that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to his death. At the time of his death, the Veteran's combined rating was 10 percent. In that regard, the Veteran had service connection in effect for bilateral sensorineural hearing loss rated 0 percent from April 11, 2011; and tinnitus rated 10 percent disabling from April 11, 2011. As such, the Veteran did not meet the schedular requirements for assignment of TDIU set forth in 38C.F.R. §4.16(a) prior to his death. Although the Veteran does not meet the schedular criteria for a TDIU, an extraschedular total rating based on individual unemployability may still be assigned in the case of a Veteran who fails to meet the percentage requirements, but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The evidence of record shows the Veteran filed an application for increased compensation based on unemployability in December 2012 due, in part to, hearing loss and tinnitus. The Veteran reported that he last worked in May 1989 and became too disabled to work in October 1989. He asserted that his service-connected hearing loss and tinnitus disabilities prevented him from securing or following any substantially gainful occupation. He reported previous employment as a general manager at a broadcasting company, and in sales/administration. The Veteran indicated that he had completed 4 years of college. In September 2012, the Veteran underwent a VA hearing loss and tinnitus examination. During examination, he reported that his hearing loss caused him difficulty in communicating with friends and family, which impacted his occupational functioning and daily activities. A February 2013 VA audiology note reflects that the Veteran was fitted for and issued hearing aids. In a February 2014 correspondence from a private physician, it was noted that the Veteran had not been able to work since 1989 and was "catastrophically disabled due to the diagnoses listed below," which included decreased hearing and the need for hearing aids in both ears along with many additional diagnoses. At the June 2016 VA hearing loss and tinnitus examination, the Veteran reported that his hearing loss impacted his daily life, including his ability to work because he could not answer the telephone, he turns-up the television volume so loud that other people in the room leave, and people must be close to him for him to hear a conversation. Regarding the functional impact of tinnitus on his ability to work, he stated that tinnitus is not constant, "it drives me nuts, it is in both ears." Pursuant to the February 2020 Board remand, the Veteran's claim for TDIU was referred to the Director of Compensation Service for extraschedular consideration. In a May 2020 advisory opinion, the Director noted that the Veteran last worked full time in 1989, and that hearing loss and tinnitus could cause some impairment. The Director concluded that after giving consideration to all relevant evidence, including, but not limited to the Veteran's education, training, and work history, the overall 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. After reviewing all the evidence of record, to include the Veteran's education and work history, the Board finds the preponderance of the evidence demonstrates that the Veteran's service-connected conditions did not prevent him from obtaining and maintaining substantially gainful employment. Although the Board understands that the Veteran would face difficulties performing full-time employment, the preponderance of the evidence demonstrates that the Veteran's service-connected bilateral hearing loss and tinnitus, alone, did not bar him from employment. Thus, based on the evidence of record, the Board concludes that the Veteran has not been rendered unemployable due to his service-connected disabilities, and a grant of TDIU is not warranted. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.