Citation Nr: 21074518 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-51 275 DATE: December 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 21, 2015 is denied. FINDING OF FACT Prior to December 21, 2015, the Veteran's service-connected bilateral hearing loss and tinnitus disabilities, which were his only service connected disabilities for that period, did not preclude substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for a TDIU prior to December 21, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1970 to June 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in October 2016 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). This case was previously remanded by the Board in July 2019, for additional development. The case has since been returned to the Board for further appellate action. While the case was in remand status, in a November 2020 rating decision, the RO granted a TDIU effective December 21, 2015. On a June 2016 VA Form 21-8940 of record (Veteran's Application for Increase based on Unemployability), the Veteran reported last working full time as a foreman for the county highway department in May 2015. Accordingly, the issue of a TDIU prior to December 21, 2015, remains on appeal. Entitlement to a TDIU prior to December 21, 2015 A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340 (a) (1). Controlling laws provide that a TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16 (a). The fact that a Veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his or her disability makes it difficult for him or her to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he or she is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a Veteran could find employment. Id. Consideration may be given to a Veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16 (b) to have two components: one economic and one non-economic. The economic component 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. The non-economic component includes consideration of the Veteran's history, education, skill, and training, whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). It is the established policy of VA 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) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational, and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, in his June 2016 VA Form 21-8940, the Veteran reported that he is unable to work due to the aggregate effect of his diabetes mellitus, type 2 with erectile dysfunction; left upper and lower extremities diabetic peripheral neuropathy; right upper and lower extremities diabetic peripheral neuropathy; and lumbosacral strain disabilities. His education included graduating from high school. He reported that he last worked full time in May 2015, and that he became too disabled to work on December 21, 2015. The RO granted a TDIU based on diabetes mellitus type 2 with erectile dysfunction, left upper and lower extremities diabetic peripheral neuropathy, and right upper and lower extremities diabetic peripheral neuropathy from December 21, 2015. See November 2020 rating decision. Prior to December 2015, the Veteran was only service connected for hearing loss and tinnitus. His combined disability rating for the period between May 2015 (his last date of fulltime employment) and December 2015 was 10 percent. He did not meet the schedular requirements for TDIU under 4.16 (a). Therefore, his TDIU claim for the period prior to December 21, 2015 is considered based on an extraschedular basis. See 38 C.F.R. § 4.16 (b). In Snider v. McDonough, No. 19-6707 (U.S. Vet. App. Nov. 19, 2021), the United States Court of Appeals for Veterans Claims (the Court) held that, when denying referral for an extraschedular TDIU under 38 C.F.R. § 4.16(b), the Board must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities and (2) that a TDIU is not warranted because service-connected disabilities did not render the veteran unemployable. For the reasons that follow, the Board finds that (1) there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected hearing loss and tinnitus for the period prior to December 21, 2015, and (2) the Veteran's hearing loss and tinnitus disabilities did not render him unemployable. On VA examination in February 2014, the Veteran reported functional impairment associated with his bilateral hearing loss disability to include difficulty hearing speech when he is not wearing his hearing aids. The examiner noted the Veteran had previously worked in construction and that he was, at that time, working for the highway department. The examiner noted that neither the Veteran's bilateral hearing loss nor tinnitus disabilities impacted upon his employment. Records from the Social Security Administration (SSA) indicate the Veteran was granted social security benefits effective May 2015 due to the impairments of osteoarthritis and allied disorders, reconstructive surgery of weight bearing joint, and peripheral neuropathy. Each was noted to be of a severe nature. No reference was made to his hearing loss or tinnitus disabilities. Indeed, the Veteran does not contend that he was precluded from securing or following substantially gainful employment prior to December 21, 2015 due to the service-connected bilateral hearing loss or tinnitus disabilities. The Veteran only contends that his unemployability since May 2015 was due to the diabetes mellitus, type 2 with erectile dysfunction; left upper and lower extremities diabetic peripheral neuropathy; right upper and lower extremities diabetic peripheral neuropathy; and lumbosacral strain disabilities. Service connection for these disabilities was initially granted in a June 2016 rating decision with an effective date of December 21, 2015 for the Veteran's diabetes mellitus, type 2, with erectile dysfunction, left upper and lower extremities diabetic peripheral neuropathy, and right upper and lower extremities diabetic peripheral neuropathy. An effective date of January 7, 2016 was assigned for the Veteran's lumbosacral strain. The Veteran did not appeal the effective dates assigned. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Based upon the evidence and the Veteran's own contentions, the Board concludes that there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected hearing loss disabilities for the period between May and December 2015. Neither the medical evidence or the Veteran's personal statements show that the symptoms of his hearing loss and/or tinnitus affected his ability to secure and maintain employment. VA treatment records similarly do not indicate that the Veteran's unemployment is due to his hearing loss and tinnitus symptoms. It is again noted that the medical and lay evidence attribute his unemployment to disabilities that became service connected on December 21, 2015. As there is no evidence showing a reasonable possibility that the Veteran was unemployable as a result of his hearing loss and tinnitus disabilities alone, referral of the claim for extraschedular consideration is not warranted. Furthermore, as the Veteran's hearing loss and tinnitus disabilities did not render him unemployable, a TDIU is denied for the period prior to December 21, 2015. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.