Citation Nr: 21065478 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-31 903 DATE: October 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2020 is granted. FINDING OF FACT From December 1, 2020, the probative evidence of record shows the Veteran's service-connected disabilities have rendered unemployable. CONCLUSION OF LAW The criteria for Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2020 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from February 1957 to August 1960. In December 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. A February 2020 Board decision denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the February 2020 Board decision. The Court found the Board did not provide adequate Reasons and Bases in finding that the Veteran's disabilities did not render him unemployable. Specifically, the Board did not adequately consider the Veteran's previous employment and education and did not explain why the Veteran would be able to perform clerical or administrative work in light of his education and work history. The claim was then brought before the Board again in May 2021 and was granted in part, with the remaining period from December 1, 2020 remanded for extraschedular consideration from the Director of Compensation. Entitlement to TDIU: From December 1, 2020 The Veteran contends that his service-connected disabilities, specifically his service-connected bilateral hearing loss, render him unemployable. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran does not meet the necessary schedular criteria under 38 C.F.R. § 4.16(a) from December 1, 2020, as his service-connected disability of bilateral hearing loss is rated as 40 percent disabling, and his only other service-connected disability of tinnitus is rated as 10 percent disabling. However, an extraschedular total rating based on individual unemployability may 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). Further, as the case has already been referred to the Director of Compensation Service, the Board can proceed with reviewing the case with consideration of extraschedular total rating based on individual unemployability. Wages v. McDonald, 27 Vet. App. 233 (2015). The evidence of record shows the Veteran completed one year of college and his occupational history has primarily consisted of working in construction and transporting vehicles. In April 2021, the Veteran submitted a statement. The Veteran stated that his hearing loss made it difficult to work because he could not understand verbally most of the time. He stated it made it hard to communicate because he did not understand most of the time. He stated not hearing well made it difficult to hear other vehicles in his previous employment as a delivery driver. He stated he had to watch mirrors a lot in case and depend on vibrations to alert him of things on the road. He stated his hearing loss impacts everything. In August 2021, the Veteran submitted several statements from his peers and family. In one letter from his wife's hospice nurse, the nurse stated she had witnessed on many occasions how hard of hearing the Veteran is. She stated that he is unable to hear her instructions or the doorbell. In another letter dated December 2020, the Veteran's friend stated that the Veteran often relies on attempting to read lips, which was made even hard during the pandemic with everyone wearing masks. He stated that he notices the Veteran becoming increasingly frustrated due to his hearing and having to repeat himself or yell when speaking to the Veteran. His friend reported that the Veteran has difficulty hearing the home phone and doorbell. In September 2021, the Veteran was provided a VA examination. The examination did show a worsening in the Veteran's hearing. Speech audiometry revealed speech recognition ability of 62 percent in the right ear and 50 percent for the left ear, and the average pure tone threshold in decibels for the right ear was 86 and 85 for the left ear. The examiner then noted that the Veteran's hearing loss did impact his ordinary conditions of daily life, including his ability to work. The examiner provided that the Veteran reported getting harder of hearing all of the time. He reported not being able to make out what people say when they talk to him and is not able to communicate with his wife unless he can read her lips. He also reported that if someone rings his doorbell he cannot hear at all. The Veteran also reported that his tinnitus has gotten worse over time, with the noise being present at all times and fluctuating in intensity between a ringing and roaring sound. Upon review of the evidence of record, the Board finds that the Veteran's service-connected bilateral hearing loss has continued to severely limit the occupation work the Veteran can perform from December 1, 2020. The Veteran has consistently reported a worsening hearing condition, to include statements from his wife and peers noting a severe inability to communicate clearly. The Veteran's hearing would prevent him from performing jobs that required lots of communication, especially telephone communication. Further, the Board notes the Veteran reported that at his last employment as a vehicle delivery driver, his hearing caused safety issues such as an inability to hear sirens, honks, or other emergencies on the road. Moreover, the Board notes that the Veteran contended that his last employment more closely represented a protected environment as his employer knew of his condition and often made special accommodations, to include completing paperwork for him so he would not have to communicate with other personnel. The Veteran also reported only working 20 to 25 hours a week at his last employment. Further, the Veteran would not be able to work in his previous employment of construction as his hearing disability would cause additional safety concerns as he would be unable to hear instructions or warnings from others regarding dangerous conditions, as well as his service-connected tinnitus could cause him to be distracted. Additionally, the Veteran has reported his hearing loss requires him to try and read lips when communicating. However, with the current COVID-19 pandemic, mask wearing is more prevalent and as reported by the Veteran's friends, this further limits the Veteran's ability to communicate as he cannot see people's lips. Lastly, the Board notes that the Veteran's records do not show the Veteran has familiarity with or training in computers, data entry, or office-like work settings, and therefore, would likely not be able to transition into other such safer gainful employment. The Board acknowledges that the Director of Compensation Service has found that extraschedular entitlement to TDIU from December 1, 2020 is not warranted. However, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by the Agency of Jurisdiction (AOJ) and is no different than a Regional Office's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2016). Accordingly, the Board concludes that the Veteran has been rendered unable to obtain or maintain gainful employment due to his service-connected disabilities from December 1, 2020 and a grant of TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.