Citation Nr: 21066256 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-28 641 DATE: October 29, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1011, 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision from a Department of Veterans Affairs (VA) regional office (RO). The decision denied a compensable rating for hearing loss in the left ear. The Veteran appealed and during the appeal, the Veteran raised the issue of unemployability. Since a TDIU is part and parcel to a claim for an increased rating, this issue was inferred. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This matter was previously before the Board in May 2020 and April 2021. Because the Veteran's combined disability rating did not reach the threshold for a schedular TDIU, the issue of entitlement to an extraschedular TDIU was referred for an initial determination by the Director of Compensation Services. In August 2021, the Director of Compensation Services denied an extraschedular TDIU. A supplemental statement of the case was issued the same month, and the matter is now before the Board. TDIU is Denied. The Veteran contends that he is entitled to a TDIU due to his service-connected hearing loss in the left ear and tinnitus. A TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement based on a singular disability, it must be rated 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). Even if the schedular criteria is not met, it is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The Veteran's hearing loss in the left ear is service connected and rated noncompensable. His service-connected tinnitus is rated as 10 percent disabling. His combined rating is 10 percent. 38 C.F.R. § 4.25. This does not meet the threshold for consideration of a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran presented evidence that his service-connected disabilities rendered him unemployable. The Board referred the issue to the Director of Compensation Services in May 2020. The Board is not bound by the prior remand directive to refer the matter for Director review. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the Board's referral decision under 38 C.F.R. § 4.16 (b) does not require the Board to award an extraschedular TDIU). In Ray, the Court recognized that a referral decision under 38 C.F.R. § 4.16 (b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. Thus, the Board must consider this issue anew, and if it finds a preponderance of the evidence is against determining the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, entitlement to a TDIU must be denied. The Veteran reported his hearing loss and tinnitus had forced him into early retirement from his job as a financial aid counselor at a high school. The Veteran stated that his hearing loss caused him to be unable to hear students well and resulted in them not seeking his assistance. He alleged that his hearing loss caused him to inadvertently raise his voice with talking with students, resulting in students complaining that he was yelling at them. This is evidence of difficulty following a particular occupation. However, the Board must consider the effect of the Veteran's service-connected disabilities on all available substantially gainful occupations. While the Veteran may not be able to follow the occupation in which he was employed, he will not qualify for a TDIU if he is able to secure and follow a different substantially gainful occupation. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention is given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. The Veteran reported in his June 2020 application for a TDIU that he has a four-year college education. He had been employed as a financial aid officer for 17 years and took an early retirement in May 2016. Information received from his former employer in August 2020 notes that during his employment no special concessions were made for any disability. During this time, the Veteran's earnings were above the poverty threshold. Thus, the Board finds that prior to May 2016 the Veteran was capable of following a substantially gainful occupation without any accommodations for his service-connected disabilities. After May 2016, the Veteran's ability to secure and follow a substantially gainful occupation was impacted by the physical effects of his service-connected hearing loss in the left ear and tinnitus. A February 2014 examination noted the functional effect of his hearing loss and tinnitus was to make hearing difficult. In July 2015, the Veteran also reported difficulty hearing the TV and that his wife tells him he speaks so loudly it sounds like he is yelling without him realizing it. A July 2019 examination noted the hearing loss in the left hear results in difficulty understanding conversations and that he speaks loudly. Nevertheless, a November 2020 audiologist noted that with proper hearing and adaptive devices he has no work restrictions with his level of hearing loss and tinnitus. Based on the evidence, including the Veteran's lay statements, the Veteran's hearing loss and tinnitus are likely to cause interference with communicating with others in an occupational environment. After May 2016, the Veteran' ability to secure and follow a substantially gainful occupation is not impacted by a mental disability. The Veteran reported that the stress caused by his decreasing work performance, which he attributed to his hearing loss, resulted in nervousness. However, the Veteran has no service- connected mental disability. Further, at none of the three VA examinations for his hearing loss, did the Veteran report nervousness or stress as symptoms of his hearing loss or tinnitus. Thus, the preponderance of the evidence is against finding there are any mental symptoms attributable to the Veteran's service-connected disabilities. The Board notes that the Veteran stated in a December 2020 correspondence that he has herniated discs, diverticulitis, sleep apnea, and anxiety which all contribute to his unemployability. However, these conditions are not service-connected and cannot be considered in determining if a TDIU is warranted. Given the foregoing, the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran's lone functional impairment due to his service-connected disabilities is difficulty with communicating with others. He has no mental or exertional limitations. This leaves a wide breadth of occupations available that the Veteran could perform. Even within his prior occupational field, it is reasonable to conclude the Veteran can provide guidance to others both in-person as previously and remotely with the use of computer rather than in-person communication. Accordingly, a preponderance of the evidence is against finding the Veteran is unable to sustain or follow a substantially gainful occupation. Therefore, TDIU is not warranted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.