Citation Nr: 21063967 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-23 186 DATE: October 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected tinnitus (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran's service-connected tinnitus does not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis due to service-connected 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 had active duty in the Marine Corps from September 1971 to August 1975. In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the local Regional Office. A copy of the transcript has been associated with the claims file. The Board previously remanded this issue for additional development in April 2020 and July 2021. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU on an extraschedular basis The Veteran seeks entitlement to a TDIU on an extraschedular basis. At the Board hearing, the Veteran reported that he last worked in 2009 after a motor vehicle accident where he sustained injuries to his spine and knees. He was unable to stand and do his job following the accident. 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. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. At this time, the Veteran is only service-connected for tinnitus, which has been rated as 10 percent disabling. Thus, this disability does not meet the schedular criteria for a TDIU. If a Veteran's disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). As such, the Board must determine whether referral for a TDIU on an extraschedular basis is warranted. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10 ; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the functional effects resulting from the Veteran's service-connected disabilities as assessed by the VA examiners are highly probative. Based on the evidence of record, the Board finds that the Veteran is not unemployable due to his service-connected tinnitus. The Board previously found that the May 2013 VA examination was inadequate as the examiner did not complete the Individual Unemployability section. Thus, the Board remanded this matter for another VA examination. The Veteran was afforded another VA examination in July 2021. The examiner noted that the Veteran reported constant tinnitus. The Veteran described the ringing as annoying and that it woke him up at night. However, although observing that tinnitus did impact ordinary conditions of daily life, including work, the examiner stated that no work activities were affected at this time. Significantly, with respect to the question of unemployability, the examiner found that with proper hearing and/or adaptive devices, the Veteran had no work restrictions with respect to his hearing loss or tinnitus. In sum, the VA examiner determined that the Veteran's tinnitus did not prevent him from work. Importantly, the evidence shows that the Veteran last worked in 2009. At that time, based on the Veteran's own testimony, he stopped working due to injuries sustained during a motor vehicle accident. There was no indication that the Veteran was unable to work prior to this accident due to his service-connected tinnitus alone. Moreover, to the extent that the Veteran has attempted to establish his entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that the Veteran is not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, while he is competent to describe his symptoms from his service-connected disability, he is not competent to offer an opinion regarding the functional impact such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical opinion. In sum, the competent medical evidence offering detailed specific specialized determinations on the Veteran's functional impairment are the most probative evidence; the medical evidence also largely contemplates the Veteran's assertions concerning his employment and descriptions of symptoms. Again, during the course of the appeal, the Veteran primarily asserted that he was unable to work due to spine and knee disabilities, which are not service-connected and have been attributed to the 2009 motor vehicle accident. As such, the Veteran's assertions are outweighed by the medical evidence of record. For the foregoing reasons, the Board finds that the Veteran's service-connected tinnitus does not preclude substantially gainful employment; and referral for extraschedular consideration for TDIU is not warranted. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected tinnitus. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.