Citation Nr: 21072675 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-23 364 DATE: December 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective February 22, 2019 is granted. REMANDED Entitlement to a compensable rating for bilateral hearing loss prior to December 5, 2017, is remanded. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss from December 5, 2017 to February 22, 2019, is remanded. Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss on and after February 22, 2019, is remanded. Entitlement to a TDIU prior to February 22, 2019, is remanded. FINDINGS OF FACT 1. Effective February 22, 2019, the Veteran has been awarded service connection for bilateral hearing loss, with a 50 percent rating; a chronic lumbar strain, with a 40 percent rating; gastroesophageal reflux disease, with a 10 percent rating, and tinnitus, with a 10 percent rating. His combined rating is 80 percent. 2. Effective February 22, 2019, the Veteran's service-connected disabilities prevent him from obtaining or maintaining gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have been met effective February 22, 2019. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1-4.14, 4.21, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1975 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded by the Board in January 2018, June 2019, and August 2021. In November 2016, the Veteran testified at a hearing before Veterans Law Judge DiLorenzo. In February 2019, he testified before Veterans Law Judge Donohue. Transcripts of these proceedings have been associated with the claims file. The Veteran has waived his right to have a hearing before a third Veterans Law Judge. 1. Entitlement to a TDIU effective February 22, 2019 is granted. The Veteran seeks a TDIU. He asserts his service-connected disabilities result in such collective impairment that he is unable to obtain or maintain gainful employment. Thus, he asserts, a TDIU is warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The U. S. Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. The determination of whether a case should be referred for an extraschedular TDIU determination under 38 C.F.R. § 4.16(b) is a lower standard than a determination on whether TDIU is warranted. See Snider v. McDonough, __ Vet. App. ___ No. 19-6707 (Nov. 19, 2021). In determining whether a referral is warranted, the Board must address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities. See Ray, supra. In the present case, effective February 22, 2019, the Veteran has been awarded service connection for the following: bilateral hearing loss, with a 50 percent rating; a chronic lumbar strain, with a 40 percent rating; gastroesophageal reflux disease, with a 10 percent rating, and; tinnitus, with a 10 percent rating. His combined rating is 80 percent. Thus, he meets the schedular rating criteria for a TDIU as of February 22, 2019. Further review of the record indicates the Veteran has a high school diploma and has reported one year of college courses. Since service, he has worked as a carpenter, a general contractor, an airport baggage handler, and a janitor. He last worked on a fulltime basis in 2017. Statements received from former employers indicate the Veteran, at the times he was employed, struggled to lift heavy objects and perform other tasks of physical labor. Considering next the medical evidence of record, the Veteran was afforded an October 2016 VA orthopedic examination of his low back disability. The VA examiner found the Veteran had significant limitation of motion of the lumbosacral spine, and was unable to engage in repetitive bending, lifting, and prolonged standing, and walking. The Veteran was, however, able to engage in sedentary employment involving prolonged sitting. A December 2019 VA audiological examination noted the Veteran's bilateral hearing loss would interfere with his ability to hear and understand people in a work environment. On VA gastrointestinal examination in December 2019, the Veteran's gastroesophageal reflux disease was found to require infrequent emergency room treatment during periods of severe flare-ups. He would also be restricted to bedrest during such periods. After considering the totality of the record, the Board finds the evidence to be at least in equipoise. While the October 2016 VA examiner found the Veteran's lumbosacral spine disability did not impair his ability to perform sedentary employment, the examiner did not take into account the Veteran's bilateral hearing loss, tinnitus, and gastroesophageal reflux disease. The Board notes the Veteran has limited education and has mostly worked in occupations requiring lifting, carrying, and other physical labor. As noted, the medical evidence of record indicates that these activities are no longer possible because of his service-connected back disability. In light of such evidence, and after affording the Veteran the full benefit of the doubt, the Board finds a TDIU is warranted effective February 22, 2019, the date he met the schedular criteria for a TDIU. Thus, the appeal is granted effective that date. REASONS FOR REMAND 2. Entitlement to a compensable rating for bilateral hearing loss prior to December 5, 2017, is remanded. 3. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss from December 5, 2017 to February 22, 2019, is remanded. 4. Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss on and after February 22, 2019, is remanded. The Veteran seeks an increased rating for his service-connected bilateral hearing loss. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of three previous remands. However, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist. The record indicates that there is a relevant VA treatment record that has not been associated with the claims file. Specifically, a June 2016 VA outpatient treatment record documents that the Veteran underwent audiometric testing and the audiogram had been saved separately. At present, the audiogram has not been associated with the claims file. As the record is relevant to the pending claim, remand is required to obtain it. The RO should also utilize this opportunity to contact the audiologists who conducted the June 2016 test, and a separate October 2019 VA audiometric test, to determine which test was used to determine the Veteran's speech recognition scores. Interpretation of the October 23, 2019 VA audiogram found in the record is also required as the graph does not attribute finings to a specific ear. 5. Entitlement to a TDIU prior to February 22, 2019, is remanded. The Veteran seeks a TDIU prior to February 22, 2019. While the Veteran does not currently meet the schedular criteria for this period, VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. In the present case, the Board finds sufficient evidence to warrant obtaining an extraschedular TDIU decision from the Director of the Compensation Service. To aid in this determination, a medical opinion on the functional impairment of his service-connected GERD prior to February 22, 2019, is also necessary. The matters are REMANDED for the following action: 1. Obtain the audiograms associated with the Veteran's June 2016 VA audiology consultation. Directions on how to view the audiogram are documented in the June 16, 2016 treatment record. 2. Request the audiologists who conducted the June 2016 and October 2019 tests, if available, state whether the Maryland CNC test was used to obtain speech recognition testing scores. 3. Request the audiologist who examined the Veteran in October 2019, if available, to interpret the October 23, 2019 audiometric chart and indicate which readings apply to each ear. 4. Then, arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to the limitations or functional impairment caused solely by the GERD prior to February 22, 2019. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the above requested development, forward the file to the Director of the Compensation Service for a decision on whether an extraschedular TDIU rating prior to February 22, 2019 is warranted. 6. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. S. Bush Veterans Law Judge Board of Veterans' Appeals P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.