Citation Nr: 21070986 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-52 744 DATE: November 29, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation and there is no reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to July 1989. This matter is on appeal to the Board of Veterans' Appeals (Board) from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded in January 2019 and June 2021 for further development and has returned for further appellate review. The RO denied the TDIU in an August 2021 Supplemental Statement of the Case (SSOC). As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU The Veteran claims that his service connected disabilities warrant a TDIU. Specifically, in a December 2015 correspondence, the Veteran reported that he was medically discharged for his knees and due to the amount of medication he takes for his disabilities, he cannot work. While a veteran may submit a separate claim for TDIU, a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities, either as part of an initial increased rating claim or a regular increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once a veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). However, a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. §4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met, and the evaluator determines that the veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran originally filed an Application for Increased Compensation Based on Unemployability (VA form 21-8940) in January 2015 based on his service-connected disabilities. The Veteran indicated that his knees, legs, lower back and migraines prevented him from securing or following gainful employment. The Veteran reported that the disabilities began to affect him full time in January 2011 and that he became too disabled to work in the same month. The Veteran did report to leaving his last job due to his disabilities. The Veteran did not report specific time lost as due to illness. The Veteran reported to graduating from high school and that his previous employment involved working in manufacturing. As an initial matter, the Board finds that the schedular criteria for consideration of TDIU benefits under 38 C.F.R. § 4.16(a) are not met. Specifically, the Veteran is currently service connected for left knee degenerative arthritis at 10 percent from September 4, 2014, tinnitus at 10 percent from September 4, 2014, and bilateral hearing loss at noncompensable rating from September 4, 2014 for combined 20 percent rating from September 4, 2014. At a 20 percent combined rating, the Veteran's service-connected disabilities do not render him eligible for TDIU under the schedular percentage requirements contemplated by VA regulations. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes that all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), should be submitted to the Director, Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). However, for the reasons provided below, the evidence fails to indicate that the Veteran is unemployable by reason of service-connected disabilities. In the January 2015 VA Form 21-8940 form, the Veteran reported to graduating from high school with a diploma, and that he did not receive any other education or training before becoming too disabled to work. The Veteran last reported to working in making turf for 12 hours daily, from 2007 to 2009, earning at highest $1760.00 per month. The highest yearly income was $20,000.00. The Veteran's DD Form 214 form shows that the Veteran did not have a military occupational specialty. In January 2015, the Veteran submitted a self-filled Request for Employment Information in Connection with Claim for Disability Benefits Form, stating that he was a flasher from April 2010 to May 2010 and that he was laid off. A March 2017 Social Security Administration (SSA) decision noted the following severe impairments of migraine headaches, knee problem, leg problem, stomach problem and dizziness. In a May 2015 Work History Report, the Veteran reported past work in car fabrication, manufacturing and cabinetry. In a Disability Report, the Veteran reported that his migraines, knees, legs, back, stomach, dizziness, heart, neck, stomach problems, uneven heartbeat, dizziness, weakness and constipation limit his ability to work. The Veteran submitted medical treatment records from the Social Security Administration in also March 2015, where the Veteran specifically stated that due to his bodily pain (mostly in his back and neck which he injured in 2011), along with some difficulties in his feet, he found it difficult to work. The Veteran did not mention any difficulties resulting from his hearing or tinnitus; specifically, the Veteran reported that he has no problems with paying attention and could finish what he started, as well as being okay with spoken instructions. In May 2015, the Veteran was provided with several VA examinations to determine the nature and etiology of his claimed issues. In the May 2015 VA examination for hearing loss and tinnitus, the Veteran reported that his bilateral hearing loss impacted his knees, legs, and back, with severe dizziness, including his ability to work. The Veteran was not diagnosed with tinnitus at this time. The Veteran was provided with a knee examination in June 2015. The examiner found that the functional impact of the Veteran's knee condition did not have a functional impact to include his ability to perform any type of occupational task. On remand, the Veteran was provided with VA examination in December 2019. In the December 2019 knee examination, the examiner described the functional impact of the Veteran's knee condition as pain, stiffness, limited range of motion, difficulty with bending, prolonged standing, and walking more than one mile or climbing the stairs. In the December 2019 audiological evaluation, the Veteran reported hearing things or noises, ringing, and popping sounds, which gives him toothaches. The Veteran reported that others must be very loud for him to hear them and that he also observed fluids leaking out of his ears on his bed covers, and that when he has earaches, he also experiences toothaches. With regards to tinnitus specifically, the Veteran reported to not being able to hear and having some difficulty with sleep. Based on another Board remand, the Veteran was provided with a VA examination for hearing loss and tinnitus in July 2021. The functional impact reported by the Veteran for hearing loss included difficulty hearing speech, ear pain, and drainage. With regards to tinnitus, the Veteran reported that he has difficulty hearing in the background, and that due to the tinnitus, it causes distraction, difficulty sleeping, dizziness, discomfort, and difficulty with some conversational speech. Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record shows that the Veteran's had attained a high school education and was previously employment in manufacturing. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the foregoing, the Board finds that the Veteran is not entitled to a TDIU at any time during the period on appeal. The Board has carefully considered the Veteran's statements regarding the effects of the aggregate effects of impairment of his service-connected disabilities, to include left knee degenerative arthritis, hearing loss and tinnitus, on his employability. Although the Veteran experienced limitation as a result of his service-connected left knee degenerative arthritis, hearing loss and tinnitus, and these disabilities have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the schedular ratings currently assigned. Simply stated, if he did not have impairment with his service-connected disabilities, there would be no basis for the combined ratings during the period on appeal. Thus, such disabilities are not shown to render the Veteran unable to secure or follow a substantially gainful occupation. The fact that he was having impairments or difficulties does not provide a basis to grant TDIU. Furthermore, the Veteran reported that he had difficulty with unemployment due to his back and neck in his SSA application, which are not service connected. The Veteran also reported that most of his employment did not require significant movement, lifting, or hearing. Thus, the Board finds that the preponderance of the evidence tend to show that the Veteran's service-connected disabilities do not prevent the Veteran from obtaining or maintaining gainful employment. As the evidence fails to reflect that service-connected left knee degenerative arthritis, bilateral hearing loss, and tinnitus prevent substantially gainful employment or that there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his service-connected disabilities, the Board further finds that referral to the Director, Compensation Service for consideration of entitlement to TDIU on an extraschedular basis is not warranted. 38 C.F.R. § 4.16(b). (Continued on the next page) Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to TDIU. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Accordingly, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.