Citation Nr: 21071266 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-35 549 DATE: November 30, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1979 to August 1982. The Veteran filed his claim for a TDIU in July 2017. The Board noted in May 2019 that the claim had been acknowledged by the Department of Veterans Affairs (VA) Regional Office (RO) but not adjudicated. The Board then remanded this claim for the RO to consider it in the first instance. Subsequently, in a September 2020 supplemental statement of the case, the Veteran's claim for a TDIU was denied. The Veteran's claim for a TDIU is now back before the Board of Veterans' Appeals (Board). Entitlement to a TDIU. A total disability rating for compensation based on individual unemployability (TDIU) 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with their education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular 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 paragraph (a) above. The Veteran has been service connected for the following disabilities: bilateral hearing loss, evaluated at 0 percent disabling as of August 5, 1982, and 20 percent disabling as of May 27, 2015; tinnitus, evaluated at 10 percent disabling as of August 10, 2010; and migraine headaches, evaluated at 50 percent disabling as of April 26, 2013. Thus, the Veteran's total combined rating was noncompensable as of August 5, 1982; 10 percent as of August 10, 2010, and 60 percent as of April 26, 2013. As the Veteran's hearing loss and tinnitus have a common etiology, these disabilities can be considered one disability to meet the schedular requirements. However, even when considering hearing loss and tinnitus as one disability, the Veteran still does not have a single service-connected disability ratable at 60 percent or more, or at least one disability rated at 40 percent disabling and a combined rating of at least 70 percent disabling at any time during the appeal period. Therefore, he does not meet the schedular criteria for assignment of a TDIU. See 38 C.F.R. § 4.16(a). The Board may not consider an extra-schedular claim for a TDIU in the first instance, but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, in this case, the Board must consider whether referral to the Director of Compensation Service for extra-schedular consideration is warranted. In Ray v. Wilkie, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means 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." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The Veteran has stated on multiple occasions that he has been too disabled to work since as early as 1982. However, he reported employment until 2008 in his August 2020 VA Form 21-8940. He stated that he previously worked as a handyman and in construction. In September 2020 correspondence, the Veteran also reported he worked as a part time laborer for the city of Youngstown, Ohio from 1999 to 2005. On his VA Forms 21-8940, the highest reported annual income was $21,000 in 1995. On his August 2020 VA Form 21-8940, the Veteran stated he is unable to work due to his service-connected migraine headaches, hearing loss, and tinnitus. On all his VA Forms 21-8940, submitted in November 2010, July 2017, and August 2020, the Veteran indicated his highest level of education completed was high school. At his June 2016 VA examination, the examiner stated the Veteran "would have occasional difficulty with working when he has severe/prostrating headaches." At a neurological consult in May 2017, the doctor noted the Veteran was not working and that "he used to volunteer, but his headaches limited that activity." At his July 2017 VA examination, the Veteran reported that in the past he did not get a job as a mechanic due to his headaches, and a job as a forklift operator due to his hearing problems. At his October 2017 VA examination for his migraine headaches, the examiner stated the Veteran cannot work and his daily activities are restricted due to his headaches. At his February 2020 VA examination for his hearing loss, the examiner stated the Veteran's hearing loss and tinnitus do not impact ordinary conditions of daily life, including ability to work. The Veteran has reported additional symptoms that caused him to be unemployed. In the Veteran's VA Form 21-8940 submitted in August 2020, he reported he was unable to work due to his chronic headaches, hearing loss, legs giving out, dizziness, black outs, high blood pressure, bad feet, and poor circulation. Additionally, at his July 2017 VA examination, the examiner stated, "with current feet condition Vet wouldn't tolerate ladder work or being up on his feet all day." He also stated these "physical intolerances" were secondary to his knee and ankle pain. The Board is cognizant of a new decision rendered by the United States Court of Appeals for Veterans Claims (CAVC) in Snider v. McDonough, No. 19-6707 (November 19, 2021). The Court found that pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), entitlement to an extraschedular TDIU must be referred to the Director of Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. The Court found that when denying an extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. The Board notes that the "reasonable possibility" standard is low and arguably could apply in almost every case. The Snider decision has essentially created an entire new complex layer to evaluating extraschedular TDIU claims reminiscent of the "well-grounded claim" era. The impact and application of the Snider decision on extraschedular TDIU adjudications is unclear at this point. Thus, to ensure the Veteran has full consideration the Board will refer the claim to the Director for extraschedular consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for a general examination for purposes of evaluating the functional effects of his service-connected migraine headaches, bilateral hearing loss, and tinnitus on his ability to perform the physical and mental acts required by employment. The entire file must be made available to the examiner. The examiner must opine on the following: (a) Does the Veteran's migraine headaches cause any limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations? If yes, please describe the functional limitation. (b) Does the Veteran's bilateral hearing loss cause any limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations? If yes, please describe the functional limitation. (c) Does the Veteran's tinnitus cause any limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations? If yes, please describe the functional limitation. (d) Does the Veteran's migraine headaches cause any limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity? If yes, please describe the functional limitation. (e) Does the Veteran's bilateral hearing loss cause any limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity? If yes, please describe the functional limitation. (f) Does the Veteran's tinnitus cause any limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity? If yes, please describe the functional limitation. 2. Upon completion of the above development, refer the case to the Director of Compensation Service for extra-schedular consideration. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.