Citation Nr: 21064635 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-18 565A DATE: October 21, 2021 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) on an extraschedular basis prior to December 4, 2019 is denied. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining substantially gainful employment prior to December 4, 2019. CONCLUSION OF LAW The criteria for entitlement to extraschedular TDIU prior to December 4, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The Board previously remanded the case in January 2021 for further development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to TDIU on an extraschedular basis prior to December 4, 2019 is denied. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service (Director) for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that while the Veteran was granted TDIU from December 4, 2019, he is not eligible for schedular TDIU prior to this date. Before December 4, 2019, the Veteran was service connected for bilateral hearing loss at 20 percent, left leg post-phlebitic syndrome at 20 percent, tinnitus at 10 percent, scar status post hernia repair at 10 percent, and status post hernia repair of the left leg anterior compartment at a noncompensable rate. Prior to December 4, 2019, the Veteran's combined rating was 50 percent. Therefore, he does not meet the criteria for schedular TDIU but may still qualify for extraschedular TDIU. In November 2010, VA received statements from the Veteran's coworkers detailing the difficulties associated with the Veteran's hearing loss. They noted the need to speak loudly, repeat things, and show the Veteran what tasks needed to be completed. In April 2012, the Veteran, through his attorney, asserted that his hearing loss had begun to interfere with his ability to perform his work-related tasks. He noted that he was seeking an extraschedular rating due to the exceptional or unusual disability picture presented by his disabilities. In June 2016, the Veteran submitted VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He noted that he had completed high school and had worked as a housekeeper with L. L. Healthcare System since 2003. The Veteran indicated he last worked in April 2016 and was forced to retire due to symptoms related to his service-connected hearing loss and left leg. Employment information from L. L. Healthcare System, received by VA in August 2016, indicated that the Veteran had worked as a housekeeping aid until May 2016 when he voluntarily retired. He had worked eight hours a day, 40 hours a week with no concessions made for age or disability. He had no time lost due to disability during the 12 months preceding his last date of employment. Alternative employment information received from L. L. Healthcare System in September 2020 indicated that the Veteran had last worked in April 2016 and had retired due to his limitations with walking and hearing. The Veteran had worked eight hours a day, 40 hours a week with limited duties. He was allowed to sit for 15 minutes every hour. The Veteran had no time lost due to disability during the 12 months preceding his late date of employment. Unlike the completed employment information received in August 2016, much of the requested information on the September 2020 employment form had been left blank. Regarding the Veteran's bilateral hearing loss prior to December 4, 2019, in a December 2010 VA examination, the Veteran reported difficulties hearing even with the use of hearing aids. He noted he relied on his coworkers for assistance in getting his attention and clarifying his work tasks for the day. He stated he was grateful to have understanding coworkers. In a March 2015 VA examination, the Veteran reported that he needed to increase the volume of his television in order to hear and had difficulty understanding speech accurately when spoken to in the presence of background noise. In an April 2016 VA examination, the Veteran reported he was unable to get a good job due to his hearing loss. Regarding the Veteran's tinnitus prior to December 4, 2019, a December 2010 VA examination noted that the Veteran reported tinnitus that was not disruptive to his daily routine. In a March 2015 VA examination, the Veteran reported his tinnitus kept him awake at night, was bothersome during waking hours, and affected his concentration as he went about his daily activities. In an April 2016 VA examination, the Veteran reported his tinnitus made it difficult to enjoy music and watch television. Regarding the Veteran's left leg post-phlebitic syndrome prior to December 4, 2019, a July 2016 VA examination noted that the Veteran was limited to light sedentary employment and that his leg edema required the ability to elevate his feet as needed. Regarding the Veteran's scar status post hernia repair prior to December 4, 2019, a September 2011 VA examination noted that there was no limitation of function due to the scar and a July 2016 VA examination indicated the Veteran's scar did not impact his ability to work. Regarding the Veteran's status post hernia repair of the left leg anterior compartment prior to December 4, 2019, a September 2011 VA examination reflected that the Veteran reported constant pain in his left leg, described as crushing, squeezing, burning, aching, oppressing, and sharp. During pain, the Veteran noted he could function with medication. The Veteran indicated that functional impairments included the loss or inability to run and walk very far without help from a crutch or pain medication. He noted he was able to keep up with his normal work requirements. The VA examiner indicated the impact of the Veteran's disability on his usual occupation and daily activities resulted in limited standing and walking. A September 2016 VA examination reflected his disability did not impact his ability to work. Pursuant to the Board's January 2021 remand, the Director reviewed the evidence of record and issued a July 2021 Advisory Opinion. The Director noted that the Veteran contended he was unable to maintain employment due to disabilities related to his hearing loss and left leg. He noted that symptoms of the Veteran's left leg disability included aching and fatigue in the leg after prolonged standing and walking with pain at rest. The Veteran was limited in standing and walking. A scar on the left leg was painful. The Director noted that the Veteran's hearing loss caused difficulty communicating but objective testing in April 2016 reflected speech recognition for the Veteran's right ear was 100 percent and for the left ear was 80 percent. The Director concluded that, for the time period in question, the evidence did not support a finding that the Veteran's service-connected conditions would have precluded all forms of substantially gainful activity including in a sedentary or semi-sedentary environment. As such, the Director concluded that entitlement to extraschedular TDIU benefits had not been established. The Board notes it is not bound by the Advisory Opinion and referring the matter for an opinion has no bearing on the ultimate outcome of the appeal. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). For a veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. This is because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. In this case, the Board does not find that the record demonstrates that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities prior to December 4, 2019, or that he was incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. While the Veteran contends he is entitled to extraschedular TDIU prior to December 4, 2019, his statements must be weighed against the objective medical evidence of record. The Veteran and his coworkers have detailed the Veteran's difficulties with hearing and communication, including their need to speak loudly or repeat things to the Veteran. VA audiological examinations show speech discrimination scores of 78 percent (fair) for the right ear and 80 percent (good) for the left ear in December 2010, 84 percent for the right ear and 88 percent for the left ear in March 2015, and 100 percent for the right ear and 80 percent for the left ear in April 2016. The Board finds that reasonable accommodations were made in the Veteran's workplace, specifically talking loudly and repeating things, and could be made in most occupational settings to accommodate the Veteran's hearing disabilities. Similarly, the evidence does not reflect that the Veteran's left leg disabilities rendered him unemployable prior to December 4, 2019. While records indicate that the Veteran experienced left leg pain and could not engage in prolonged standing or walking, the July 2016 VA examiner indicated the Veteran was able to engage in light sedentary employment offering the ability to lift his leg when needed. Conflicting information regarding the Veteran's work accommodations was provided by L. L. Healthcare System. The first form was completed by L. L. Healthcare System in August 2016, three months after the Veteran's retirement, and noted that no accommodations had been made for his disabilities. All information requested on the form was completed in detail. The second form from L. L. Healthcare System was received more than four years after the Veteran's retirement, in September 2020, and indicated that the Veteran was allowed 15-minute breaks each hour. The form was incomplete with sections of requested information left blank. It contained additional information that conflicted with the initial information provided by L. L. Healthcare System, such as the Veteran's start and end dates of employment. Given the extensive information provided in the August 2016 employment form, the Board finds this initial form to be more credible than the September employment 2020 form. The Board further notes that both the August 2016 and September 2020 forms indicated that the Veteran had not lost any time due to disability during his last 12 months of employment. The evidence of record indeed reflects that limitations were caused by the Veteran's service-connected disabilities; however, the preponderance of the evidence does not support a finding that his service-connected disabilities would preclude him from obtaining and maintaining any form of gainful employment prior to December 4, 2019. Loss of industrial capacity is the principal factor in assigning schedular disability ratings and the Veteran was compensated for the symptoms of his disabilities through the assigned ratings for his service-connected disabilities. See 38 C.F.R. §§ 3.321(a), 4.1. A TDIU rating is not warranted where a veteran is unable to continue a chosen profession but, as already noted, the determinative question for purposes of TDIU is whether the veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While the Veteran's job as a housekeeping aid may have been strained with increased difficulties due to his service-connected disabilities, the question is not whether he could work in his prior job or even in his prior vocation, but whether he could, in fact, work. The evidence of record supports that prior to December 4, 2019, the Veteran was capable of maintaining substantially gainful employment. The Board in no way minimizes the severity of the Veteran's service-connected disabilities prior to December 4, 2019. However, after carefully considering all the evidence of record, the Board finds that the Veteran's service-connected disabilities alone, without consideration of his age and non-service-connected medical problems, would not prevent him from finding and maintaining substantially gainful employment. The assignment of the Veteran's combined 50 percent schedular rating prior to December 4, 2019 is recognition of the functional limitations caused by his disabilities, and that rating contemplates the severity and overall impact the symptoms have on his life. Based on the foregoing, the Board finds that the weight of the probative evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders. As unemployability due to service-connected disability prior to December 4, 2019 is not shown, TDIU on an extraschedular basis is not warranted. The weight of the evidence is against the claim, and the provisions of 38 C.F.R. § 3.102 are not applicable. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.