Citation Nr: 21075342 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-21 031 DATE: December 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, including referral for extraschedular consideration, is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are bilateral hearing loss, which has been assigned a rating of 40 percent, and tinnitus, which has been assigned a rating of 10 percent. 2. There is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected hearing loss and tinnitus. 3. The Veteran's service-connected hearing loss and tinnitus have not prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The percentage requirements for entitlement to TDIU on a schedular basis are not satisfied. 38 C.F.R. § 4.16. 2. The criteria for referral of the case to the Director of Compensation for extraschedular consideration of entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1960 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of the hearing is of record. In a December 2018 decision, the Board denied entitlement to TDIU, including referral for extraschedular consideration. In a September 2019 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR), and vacated the Board's December 2018 decision, remanding the matter for action consistent with the terms of the JMR. In a June 2020 decision, the Board again denied TDIU, including referral of the case for extraschedular consideration. The Court, in a June 2021 Order, granted a JMR, and vacated the Board's June 2020 decision. It remanded the matter for action consistent with the terms of the JMR. The JMR identified two errors in the Board's June 2020 decision. First, it was unclear whether the Board used the correct evidentiary standard in denying referral of the case for extraschedular consideration. As discussed in the JMR, that determination requires "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, No. 19-6707, 2021 U.S. Vet. Claims LEXIS 2050 (November 19, 2021). The "reasonable possibility" standard for determining whether extraschedular referral is warranted is lower than the standard for denying TDIU. Snider, supra. Thus, the JMR noted that the Board may have used a higher evidentiary standard than required for referral purposes. Second, the JMR found that the Board did not provide an adequate statement of reasons or bases in denying referral of the case for extraschedular consideration. Specifically, the parties to the JMR agreed that the Board's discussion of why the Veteran had not shown he could not perform past jobs as a cook or restaurant manager did not comport with favorable evidence regarding his difficulties working in environments with adverse listening conditions such as those where background noise is present, or where safety is dependent on good hearing. The parties noted evidence that a cook's duties include assisting others, which entails communication with others. Further, the JMR found that the Board's discussion of examples of other possible jobs that the Veteran's hearing conditions would not prevent him from performing did not reconcile some of these examples, such as a caregiver or medical assistant, with his work history, education, and difficulty working in jobs that require more than minimal communication with others. TDIU The Veteran seeks referral for extraschedular consideration of entitlement to TDIU. See September 2021 Correspondence. For the following reasons, the Board finds that referral for extraschedular consideration is not warranted, and that the criteria for TDIU have not been met. A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1 (a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Analysis The Veteran's service-connected disabilities are bilateral hearing loss, which is assigned a 40-percent rating, and tinnitus, which is assigned a 10-percent rating. As he does not have a single service-connected disability rated at 60-percent or more, or a combined disability rating of 70 percent or more, the percentage requirements for schedular entitlement to TDIU are not satisfied. See 38 C.F.R. § 4.16(a). The Board finds that consideration of extraschedular entitlement to TDIU is not warranted. In that regard, referral of a case to the Director for extraschedular consideration requires "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, No. 19-6707, 2021 U.S. Vet. Claims LEXIS 2050 (November 19, 2021). The Board finds that there is not sufficient evidence to raise a reasonable possibility that the Veteran's service-connected hearing loss and tinnitus render him unemployable for TDIU purposes. In Ray, the Court observed that the phrases "substantially gainful occupation" and "unable to secure and follow" such an occupation are ambiguous. 31 Vet. App. 58 at 69. The Court noted that the Social Security Administration (SSA) regulations define "substantially gainful activity" as "work that (a) [i]involves doing significant and productive physical or mental duties; and (b) [i]s done (or intended) for pay or profit." Id. at 72 (internal citations omitted). It further noted that, according to SSA regulations, work can be substantial "even if it is done on a part-time basis or if [claimants] do less, get paid less, or have less responsibility than when [they] worked before," and that work is gainful "if it is the kind of work usually done for pay or profit, whether or not a profit is realized." Id. at 72-73 (internal citations omitted). Drawing on those regulations for guidance and its own caselaw, 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." Id. 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 are 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. Here, the economic component is satisfied, as the Veteran has not worked since 2014, according to his August 2018 hearing testimony and the June 2014 application for TDIU (VA Form 21-8940). However, the noneconomic component is not satisfied, as the Board finds that the Veteran has the ability to secure and follow an occupation earning more than marginal income. With regard to the Veteran's occupational history, education, skill, and training, the June 2014 VA Form 21-8940 states that he last worked as a driver from 2007 to 2014. According to his testimony at the August 2018 Board hearing, prior to that time he owned and operated a used car dealership for almost twenty years. In that capacity, his primary role was as a salesman. He also did "most of the bookkeeping." He testified that he has also owned a couple of restaurants. He stated that he and his wife managed the restaurant. When asked what his role was in these businesses, he responded: "Management. Cook." He stated that he also tended a bar most of his life part time. As to the Veteran's education, skill, and training, the June 2014 VA Form 21-8940 states that the Veteran completed high school, and had training in the "chef cooking industry." Regarding the Veteran's physical and mental abilities to secure and follow a substantially gainful occupation, the relevant inquiry is how his hearing loss and tinnitus affect these areas, as these are the only disabilities for which service connection has been established. According to the August 2014 VA examination report, the Veteran stated that his hearing loss made "life more difficult" and that his tinnitus could be distracting and confusing. In an April 2016 letter, the Veteran wrote that it is impossible for him to perform any type of work which requires hearing. He stated that all of the job skills he had involved verbal communication. His hearing aids helped very little. He required headphones to hear the television or radio. He found public places and events very frustrating when he could not make out what was being said. He concluded that he is totally incapacitated and unable to function due to his disability. A September 2016 VA treatment record reflects that the Veteran reported difficulty understanding speech in background noise, at a distance, without visual cues, and over the telephone. He listed to the television with the volume increased. A VA audiological examination to assess the Veteran's hearing loss and tinnitus was performed in May 2017. According to the examination report, he stated that he struggled to hear during conversations, especially in a group setting, and could only hear half of what his wife said. Regarding tinnitus, he stated that he experienced discomfort and distraction. The examiner found that the Veteran would have significant difficulty in an occupation which required communication in adverse listening conditions over the telephone, or in an occupation where safety was dependent on good hearing. The examiner opined that the Veteran's hearing loss "should not impact physical or sedentary employment if the occupation is in a quiet environment [and requires only] minimal communication with others." At the August 2018 Board hearing, the Veteran testified that he most recently worked as a bartender, but had to stop after a few days as he was unable to hear. He stated that he had to stop working as a commercial driver because he failed the Department of Transportation examination due to his hearing loss. The Veteran submitted an independent vocational assessment report dated February 2020. The report is authored by a certified Vocational Evaluator. After a detailed review of evidence in the claims file and the job descriptions listed in the Dictionary of Occupational Titles (DOT) for a cook, automobile salesperson, and chauffeur, the vocational expert opined that the Veteran's symptoms due to his bilateral hearing loss and tinnitus result in the "complete inability to perform even sedentary unskilled substantially gainful competitive employment on a regular and continuing basis." The vocational expert stated that the negative vocational impact produced by the Veteran's hearing loss and tinnitus would result in extreme fatigue or frustration caused by severe hearing loss. The vocational expert further stated that the Veteran's hearing loss and tinnitus would cause him to ask individuals to continually repeat themselves or talk louder and slower, and would include disturbances in concentration and completion of tasks. "The fatigue, frustration and special communication would also require unscheduled breaks away from the duty station to get composed to be able to continue" [sic], according to the report. "This ongoing struggle to hear or understand what is going on around [the Veteran] causes such fatigue or anguish that it would also result in a significant negative impact on his ability to maintain a regular and predictable schedule," the vocational expert further wrote. The report states: "These negative vocational impacts... would prevent [the Veteran] from performing his past semi-skilled occupations of cook or chauffeur or skilled occupation of car salesman since the requirement to hear and talk in these occupations are rated as performed frequently (34-66% of a work day) and in a moderately noise environment (3 on a 1-5 level) per the Selected Characteristics of Occupations (SCO) which is a companion volume to the U.S. Department of Labor's Dictionary of Occupational Titles" [sic]. The vocational expert went on to say that "[t]hese negative impacts will also prevent [the Veteran] from performing any occupation in the national economy on a competitive level at any physical demand level even at the sedentary level of unskilled work, which is the only type [of] work he would possibly be suited for." The vocational expert then discussed specific functional and exertional requirements of unskilled jobs and explains why the Veteran would not be able to meet those exertional standards. Specifically, the vocational expert stated that substantially gainful unskilled work in a competitive labor market requires an individual to pay attention to tasks for two-hour blocks of time before being given a break of ten to fifteen minutes or a lunch break of thirty minutes to an hour. The worker must be capable of maintaining the expected pace and production required by the employer and do so with minimal absences or breaks or interruptions from work. The worker must also be able to complete tasks fully while maintaining appropriate relationships with coworkers, supervisors, or possibly customers depending on the occupation. The vocational expert found that the Veteran's hearing loss "prevents him from maintaining appropriate pace and concentration due to needing to take extra time to perceive words as well as [maintaining] appropriate relationships with coworkers, supervisors, and customers" [sic]. The vocational expert further noted that the majority of jobs that exist at an unskilled level are in work settings that have a noise intensity of a 3 (moderate noise) to a 5 (very loud). This level of noise would greatly interfere with the Veteran's hearing and would not be an appropriate option given his hearing loss, according to the vocational expert. He further observed that it would also add a significant safety hazard issue. The vocational expert added that any occupation that has a rating of 1 (very quiet) or 2 (quiet) such as an office worker, order clerk, election clerk, information clerk, or credit clerk, would require hearing and talking with others such as co-workers or the general public on at least an occasional (1-33% of a work day) or frequent basis (34-66% of a work day) either on the phone or in person. The vocational expert stated that this "would bring its own set of limitations and negative vocational impacts" due to the Veteran's severe limitation with communicating "in either of those methods" and would not be reasonably acceptable without serious accommodations made by the employer. In a September 2021 addendum to the vocational assessment report, with regard to a statement in that report that the Veteran's sleep was interrupted by tinnitus, which caused restless nights, the vocational expert stated that "he was not sure where this information came from and it could have been that [he] was thinking of the sleep troubles [the Veteran] had previously . . . suffered [due to] sleep apnea in the late [1990's] through the 2000's, but this was never connected to his tinnitus." The vocational expert added that it was not the Veteran's interrupted sleep "that caused [the vocational expert] to reach the conclusion [he] reached," presumably in reference to the Veteran's fatigue. The vocational expert clarified that the Veteran's fatiguewhich the original report cites as a factor supporting the conclusion that the Veteran is unemployable is due to having to ask people to repeat themselves and having to strain to hear others. In determining whether there is a reasonable possibility of unemployability due to physical and mental limitations caused by the Veteran's hearing loss and tinnitus, the Board will first consider his ability to perform past occupational activities. The Board does not question the fact that the Veteran could not safely work as a driver, and indeed is legally unable to do so based on his hearing impairment, since it prevented him from passing the examination required to renew his commercial driver's license. The Veteran's hearing difficulties would also significantly interfere with his ability to work as a salesman, which presumably entails extensive interactions with customers and thus the ability to readily hear what they say. The Board also finds it likely that the Veteran could not obtain or maintain a substantially gainful occupation as a bartender or waiter, which would require the ability to readily hear and communicate with patrons, a factor made even more challenging in the noisy environments often associated with bars and restaurants. However, neither the Veteran nor the vocational expert has explained why his hearing loss and tinnitus alone, that is, without regard to his other medical conditions or age, would prevent his return to an occupation as a cook. In this regard, at the August 2018 Board hearing, when asked what his role was in his restraint business, he replied: "Management. Cook." He stated in his June 2014 VA Form 21-8940 that he had training as a chef. Thus, an occupation as a cook is within the ambit of his work experience and training It is not apparent why the Veteran's hearing loss or tinnitus would prevent him from securing or following a substantially gainful occupation as a cook, since hearing impairment would not seem to limit the ability to perform the activities associated with that occupation, which does not necessarily depend on more than minimal oral communication with others. The JMR notes that "working as a cook . . . entails working in adverse listening conditions because of background noise" and also assisting others, which requires oral communication. As will be explained, the duties of a cook do not necessarily involve assisting others or require good auditory acuity. Thus, there is no indication that background noise would render him unable to perform the activities required of a cook, which do not necessarily require more than minimal oral communication. The vocational expert report provides a description of the duties of a cook from the Dictionary of Occupational Titles (DOT). That description shows that the activities of a cook do not require more than minimal oral communication with others, and that good hearing is not necessary to perform that occupation safely. More specifically, the description is in two parts, with the verb "may" consistently modifying the sentences in the second part, and thus distinguishing it from the first part of the description. The first part is conveyed with simple action or transitive verbs, such as "prepares," "seasons," "reads," "adjusts," "measures," "mixes," "bakes," "roasts," "broils," "steams," "adds," "observes," and "carves." The absence of the word "may," as contrasted with the sentences in the second part, indicates that these are the standard actions and duties that an individual employed as a cook would be expected to perform. None of these actions entails communicating with others, including by assisting or supervising other cooks or kitchen staff. They also do not indicate that good auditory acuity is required to perform them safely and effectively, or that background noise would compromise a hearing impaired individual's ability to perform them. The Board observes in this regard that the May 2017 VA medical opinion does not indicate that the Veteran's hearing loss prevents him from working in environments involving some background noise and oral communication, merely that it would have "no impact" on work in quiet environments in which minimal oral communication is required. Each sentence in the second part of the DOT description of a cook begins with the modal verb "may," which denotes possibility. For example, it states, "May supervise other cooks and kitchen employees," and "[m]ay substitute for and relieve or assist other cooks during emergencies or rush periods and be designated Cook, Relief (hotel & rest.) [sic]." The word "may" indicates that a cook's duties do not necessarily entail supervising or assisting others, and that an individual may be employed as a cook without having to supervise or assist others. Indeed, according to the DOT, a cook who relieves or assists other cooks may even have a distinct job title (i.e., "Cook, Relief"). Accordingly, the fact that some jobs as a cook may involve supervising or assisting others does not lead to the conclusion that the Veteran would be unable to obtain or maintain substantially gainful employment as a cookperforming actions such as those described in the DOTin jobs that do not require assisting or supervising others. He has not explained why he lacks the physical or mental ability to perform that job due solely to his hearing loss and tinnitus. The February 2020 vocational assessment report also does not explain why he would be unable to work as a cook in jobs that do not require assisting or supervising others. To the extent the vocational expert cites other factors such as fatigue, difficulty concentrating, maintaining an appropriate pace, and getting along with co-workers and supervisors, the Board finds that explanation unpersuasive, as will be discussed below. Even if the Veteran could not perform his past occupations, the Board finds that his work experience, vocational attainment, training, and educational background would not prevent him from transitioning to other types of employment in a substantially gainful occupationi.e., an occupation earning more than a marginal income, as defined in Raywhose duties could be adequately performed within the limitations imposed by his service-connected hearing loss and tinnitus. Preliminarily, the Board notes that the February 2020 vocational assessment includes the DOT definition of "bookkeeper," presumably because the Veteran mentioned doing the bookkeeping for his car dealership business. However, while at the August 2018 Board hearing he stated that he did most of the bookkeeping, the vocational assessment states that he did "some bookkeeping in the sense that he wrote checks," while "his wife did the actual bookkeeping." Given these conflicting statements, it is unclear to what extent the Veteran in fact has experience with bookkeeping. Nevertheless, the Board notes that the DOT description of this job, as provided by the vocational expert, lists duties that are essentially clerical or administrative in nature. It does not describe duties that would entail more than minimal oral communication with others. Thus, there is no apparent reason why the Veteran's hearing loss or tinnitus would affect his physical or mental abilities to perform the duties of a bookkeeper such that he could not secure or follow a substantially gainful occupation in that capacity. At the same time, the Board recognizes that the DOT definition also states that the specific vocational preparation for the occupation of bookkeeper requires one to two years of previous experience in the occupation in order to meet its performance requirements. It is unclear whether the Veteran's bookkeeping experience as owner of a car dealership would satisfy that requirement, especially if it was limited to writing checks. If he did in fact do "most of the bookkeeping," as he stated at the Board hearing, then a job of this nature may be in keeping with his vocational background and experience. Be that as it may, regardless of whether the Veteran's education and work experience qualify him to work as a bookkeeper, there is no apparent reason why his hearing loss and tinnitus would cause limitations rendering him unable to earn more than marginal income in other occupations that do not seem to require more than minimal oral communication. For example, occupations in custodial maintenance, such as a janitor at an office, as a groundskeeper, as a packager, as a mail clerk or mail sorter, as a clerical sorter, or perhaps as a file clerk, would not seem to require more than minimal oral communication to effectively carry out the tasks associated with such employment. The activities required of these occupations would not depend on more than minimal oral communication. Moreover, with the exception of a packager, these occupations are often associated with quiet environments. The Board also notes that some background noise would not necessarily affect the Veteran's ability to perform the tasks of an occupation that do not require more than minimal oral communication or good auditory acuity to perform them safely or effectively. The May 2017 VA examiner did not state otherwise, but merely stated that the Veteran's hearing loss "should not impact" his ability to work in quiet environments involving minimal oral communication, which does not indicate that he would be unable to work in environments with some background noise. Although the above examples are different from the Veteran's previous occupations, that in itself does not mean that his occupational history, education, skill, and training are such as to foreclose consideration of such occupations in determining whether there is a reasonable possibility that he is unemployable for TDIU purposes. In that regard, these occupations does not necessarily require more than a high school diploma, special skills training, or previous relevant experience. There is thus no apparent reason why the Veteran could not secure and follow such occupations when only his service-connected disabilities are considered. See 38 C.F.R. § 4.16(b). In short, the evidence does not show that the Veteran's hearing loss and tinnitus would cause limitations rendering him unable to complete the tasks necessary to earn more than a marginal income as a janitor, groundskeeper, packager, or mail clerk or sorter, for example, as these occupations would not necessarily require more than a high school degree (which the Veteran has), special skills or training, or prior relevant work experience. The Board also notes that the Veteran's tinnitus, while bothersome and distracting, is not shown to cause physical or mental limitations that would prevent him from performing the activities required of the above-mentioned occupations. He has not presented evidence showing otherwise. With regard to the Veteran's mental ability to perform the activities required of the occupation at issue, his service-connected disabilities do not include a mental health disorder. His service-connected hearing loss and tinnitus are not shown to cause limitations with respect to memory, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. In that regard, the vocational expert's opinion on these factors is not probative, as will be explained below. While the Veteran's tinnitus can be bothersome and distracting, and thus potentially affects his concentration, the evidence, including the Veteran's statements, does not show or even suggest that it limits his concentration to the point where he could not adequately and consistently perform the activities required in a substantially gainful occupation (i.e. one that earns above a marginal income as defined by the Bureau of the Census) as a janitor, packager, or mail clerk or sorter, to provide a few examples. The Board finds that the February 2020 vocational expert opinion is not probative. In this regard, the probative value of an expert opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The vocational expert stated that he based the opinion on review of the claims file, including service treatment records, VA examination reports, civilian treatment records, and various statements from the Veteran. In other words, the vocational expert's opinion is purportedly based on the same evidence that is before the Board. Yet, his discussion of the Veteran's symptoms and limitations is unmoored from that evidence, giving the impression that the record before the vocational expert is entirely different than the one before the Board. For example, the vocational expert repeatedly cites "fatigue," including "extreme fatigue," as a factor preventing the Veteran from engaging in substantially gainful employment. However, the Veteran has never reported experiencing fatigue due to tinnitus or hearing loss. Accordingly, there is no basis for the expert's speculation that the Veteran is fatigued due to tinnitus or hearing loss. Thus, to the extent the opinion is premised on that unfounded assumption, it lacks probative value. Even if, and purely for the sake of argument, the Veteran did have fatigue associated with tinnitus and hearing loss, the vocational expert does not explain why such fatigue would be sufficient to render the Veteran unable to engage in substantially gainful activity. In this regard, under VA's criteria for rating mental health disorders, a 30- percent rating is assigned for symptoms that include chronic sleep impairment. See 38 C.F.R. § 4.130. Sleep apnea resulting in persistent daytime hypersomnolence is also assigned a 30-percent rating. See 38 C.F.R. § 4.97, Diagnostic Code 6847. In other words, occupational impairment due to fatigue does not necessarily amount to unemployability, as indicated by VA's rating schedule. It may in some cases, but the vocational expert does not explain why such is the case here. At any rate, for the reasons discussed above, the evidence does not establish that fatigue, let alone "extreme fatigue," is a manifestation of the Veteran's hearing loss or tinnitus. The vocational expert writes that the Veteran's "ongoing struggle to hear or understand what is going on around him causes such fatigue or anguish that it would also result in a significant negative impact on his ability to maintain a regular and predictable schedule." Again, the Veteran has not stated that he experiences fatigue due to difficulty hearing. While he experienced some frustration, the record does not suggest that it causes such anguish or mental health symptoms as to produce unemployability by preventing him from maintaining a regular and predictable schedule or appropriate persistence and pace. In the April 2016 letter, the Veteran stated that he felt frustrated in public settings and events when he had trouble understanding what was said, but has not otherwise mentioned frustration as a significant symptom. The vocational expert also does not explain what evidence supports the conclusion that feelings of frustration, fatigue or anguish are present to such a degree that they render the Veteran unable to maintain a regular and predictable schedule, or specify how they would cause such occupational impairment. To put the matter into perspective, under the rating schedule for evaluating mental health disorders, a 50-percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. Thus, occupational impairment, even significant occupational impairment due to frustration, anguish, or fatigue, does not necessarily equate to unemployability. The vocational expert does not bridge the gap between a finding of occupational impairment and the conclusion of unemployability. The fact that the Veteran has occupational impairment due to his hearing loss and tinnitus is not at issue. The 40-percent rating currently assigned the Veteran's hearing loss, and the 10-percent rating for his tinnitus, contemplate such impairment. See 38 C.F.R. § 4.1. In the September 2021 addendum to his report, the vocational expert stated that the Veteran's fatigue is due to having to ask people to repeat themselves and having to strain to hear others. If this means that his fatigue is situational, occurring at times when he has to ask people to repeat themselves and straining to hear others, then occupations that do not require more than minimal oral communicationsuch as in the possible examples discussed abovewould not occasion that fatigue, since performing the activities required by such occupations does not depend on hearing others speak beyond a minimal amount. The Board also re-emphasizes that the record does not establish the underlying premise of the vocational expert's opinion namely, that the Veteran does experience significant fatigue or anguish due to his hearing loss and tinnitus, let alone to the degree that he cannot perform the activities required of a substantially gainful occupation. Significant fatigue, frustration, or anguish causing occupational impairment due to the Veteran's hearing loss or tinnitus is not shown in the evidence of record. The vocational expert's bare assertion that the Veteran experiences fatigue or anguish does not make it so. In any event, for the reasons discussed above, the vocational expert has not explained why fatigue or anguish would result in unemployability, even if these symptoms cause some occupational impairment, or why they would affect the Veteran's ability to perform an occupation that does not require more than minimal oral communication. The vocational expert also does not explain why the Veteran would need to take "unscheduled breaks away from the duty station to get composed to be able to continue" due to his hearing loss and tinnitus. The vocational expert cites fatigue as a factor, but the Board has already explained why fatigue is not established, let alone to the degree that it would cause unemployability. The Board has also explained why, to the extent fatigue is caused by oral communication, that would not be a factor in jobs requiring no more than minimal oral communication. The vocational expert also cites frustration, but the record does not show that the Veteran experiences such frustration that he would need to take unscheduled work breaks, or that frustration is even a symptom causing occupational impairment. Service connection for a mental health disorder has not been established, and the Veteran has not stated, and the record does not otherwise show, that he experiences frustration to the point where it significantly interferes with occupational functioning, such as by requiring him to take unscheduled work breaks. The Board must also reiterate that occupational impairment, including unscheduled work breaks, does not equate to unemployability, as explained above when discussing symptoms and functional impairment associated with a 50-percent rating for mental health disorders. Finally, to the extent the Veteran's frustration is due to the challenges associated with oral communication, there would be little cause for such frustration in occupations involving no more than minimal oral communication. The vocational expert's assertion regarding unscheduled breaks also suggests that this would be due to the stress or fatigue caused by oral communication. Occupations requiring no more than minimal oral communication would thus not present circumstances that would cause the Veteran to need to take a break and get composed due to any stress or fatigue associated with his hearing loss or tinnitus. The vocational expert also finds that the Veteran's hearing loss "prevents him from maintaining appropriate pace and concentration due to needing to take extra time to perceive words as well as appropriate relationships with coworkers, supervisors, and customers" [sic]. Once again, the Board does not find in the record where the Veteran has reported or been found to have concentration difficulties due to his hearing loss or tinnitus. He has stated that his tinnitus can be distracting, uncomfortable, and confusing, but has not stated that his concentration is generally impaired. Moreover, as the criteria for rating mental health disorders indicate, difficulty concentrating does not in itself equate to unemployability. See 38 C.F.R. § 4.130. Further, in occupations not requiring more than minimal oral communication, difficulties with maintaining appropriate pace and concentration due to "needing to take extra time to perceive words," would not present an issue, as performing the activities required of those occupations is generally not dependent on being able to understand spoken words. With respect to maintaining appropriate relationships with coworkers, supervisors, and customers, the vocational expert does not explain why difficulty hearing or tinnitus "prevents" the Veteran from maintaining such appropriate relationships, even if it causes difficulties with oral communication. In any event, interpersonal challenges would not prevent the Veteran from obtaining and maintaining substantially gainful employment in occupations that do not require more than minimal oral communication and interactions with others. Regarding the work environments and occupational demands of unskilled labor, the vocational expert states that many occupations requiring only unskilled labor are in settings with a higher noise level, which would be inappropriate and interfere with the Veteran's hearing. But the expert does not explain why the noise level would matter if the occupation in question did not require oral communication or the ability to hear well. The vocational expert states that a noisy environment would present a "significant safety hazard issue," but does not explain why that would be the case in occupational settings that are non-hazardous. Moreover, the vocational expert does not account for occupational settings such as a mailroom, where the noise level may be minimal. In short, the vocational expert does not explain why the Veteran could not work in a quiet office-type environment as a janitor or mail clerk or sorter, for example. These occupations would not necessarily be in a noisy environment, would not entail more than minimal oral communication with others, and would not require more than a high school diploma or past relevant work experience. In jobs that do not depend on the ability to engage in more than minimal oral communication, or on oral communication at all, such as an occupation in janitorial maintenance or as a mail sorter, the vocational expert has not adequately explained or shown that the Veteran's hearing loss or tinnitus would cause physical or mental limitations rendering him unable to engage in them and maintain employment in a manner that would satisfy the ordinary standards for such work. The vocational expert also has not adequately explained why the Veteran could not obtain and maintain substantially gainful employment as a cook in a job that does not require assisting other cooks or supervising staff, as discussed at length above. The vocational expert states that any occupation that has a noise rating of 1 (very quiet) or 2 (quiet) such as an office worker, order clerk, election clerk, information clerk, or credit clerk, would still require hearing and talking with others such as co-workers or the general public on at least an occasional (1-33% of a work day) or frequent basis (34-66% of a work day) either on the phone or in person. In other words, some of the job examples provided by the vocational expert may require only occasional hearing and talking that would involve only a very small percentage of a workday, according to the range provided by the expert. The record does not show that the Veteran's degree of hearing loss or tinnitus prevents him from hearing and talking with others on an occasional basis. He can still perform work in a quiet environment requiring "minimal communication," as found by the audiologist in the May 2017 VA examination report. While not a vocational expert, the audiologist has the expertise in assessing the severity of hearing loss. Thus, the audiologist's opinion regarding the Veteran's ability to communicate is probative. Indeed, in terms of the Veteran's ability to communicate, the audiologist did not indicate that the Veteran could only work in quiet environments involving minimal communication with others. Rather, the audiologist stated that the Veteran's hearing loss "should not impact" such employment, meaning it would not cause any challenges or impairment in these types of occupations. The fact that there may be some or even significant impact in other types of employment does not equate to unemployability. For example, the audiologist stated that the Veteran "would have difficulty in occupations that require a significant amount of communication via telephone," but did not indicate that the Veteran's hearing loss or tinnitus would cause substantial difficulty in other jobs involving some in-person oral communication. The Board also observes that at the August 2018 Board hearing, the Veteran demonstrated his ability to hear and communicate, albeit with difficulty and with the help of hearing aids. The vocational expert states that a job in a low-noise setting "would bring its own set of limitations and negative vocational impacts" due to the Veteran's "severe limitation with communicating," but does not explain what these are, especially if hearing and talking were only required during a small percentage of the day. Again, the Veteran is not shown to be unable to hear or unable to speak and communicate with others. As noted above, the May 2017 VA audiologist merely stated that the Veteran's hearing loss "should not impact" his ability to work in quiet environments where only minimal communication is required. It does not logically follow from that statement that the Veteran is therefore significantly limited in his ability to hear and communicate in settings that involve light background noise and some oral communication, even if such settings may present more of a challenge. In any event, while the occupations listed by the vocational expert may require some hearing and talking with others, such as an office worker, order clerk, election clerk, information clerk, or credit clerkto use the examples listed by himthat still does not explain why the Veteran could not secure or follow other types of occupations in environments with presumably low noise levels and which do not require more than minimal oral communication, including occupations as a janitor or mail sorter. Accordingly, for the above reasons, the Board finds that the vocational expert's opinion is not probative because it depends on assumptions regarding the functional impacts of the Veteran's hearing loss and tinnitus that are not established by the record, and because it lacks an adequate explanation for the conclusions reached. It does not account for occupations that the Veteran's hearing loss and tinnitus would not prevent him from securing and following in terms of the physical and mental ability to perform the tasks required of such occupations, as well as the quiet work environments generally associated with them, including clerical jobs requiring no more than minimal communication with others, such as a mail clerk or sorter, or janitorial work. Consequently, the February 2020 vocational assessment report carries no weight in the Board's determination. The Veteran's April 2016 letter, in which he wrote that it is impossible for him to perform any type of work which requires hearing, is also not probative on the issue. He does not explain why he is unable to perform jobs requiring the ability to hear and communicate a small percentage of the time (when he is in fact able to hear and communicate, albeit with limitations) or which generally do not entail or require oral communication, such as janitorial work. He stated that all of the jobs he had before involved verbal communication, but this does not prevent him from transitioning to other types of jobs requiring no more than minimal oral communication. As discussed above, his work experience, education, and training would not prevent him from obtaining occupations the qualifications for which do not require past relevant work experience, special training, or higher education. Such occupations include those that would not require more than minimal oral communication to carry out the activities required of them, including an occupation as a janitor or mail sorter. The Veteran concluded in his April 2016 letter that he is totally incapacitated and unable to function due to his disability, but does not explain why the inability to do certain types of jobs, such as many or all of the jobs he performed in the past, renders him unable to perform other types of jobs not dependent on strong hearing acuity or more than minimal oral communication. The record also does not support his statement that he is "totally incapacitated" due to his hearing loss and tinnitus. The Veteran also submitted a February 2016 letter from his private primary care physician, which states that "considering [the Veteran's] age and the multiplicity of medical problems that he has," he is disabled and unemployable. This letter does not support a finding of unemployability due solely to the Veteran's service-connected hearing loss and tinnitus, as it is based in part on the Veteran's age and a "multiplicity of medical problems" that extend beyond those service-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. Moreover, it is not supported by an explanation. In a December 2015 statement, the Veteran wrote that his hearing, eyes, back, foot, and bowel and prostrate problems make it impossible for him to hold down any type of employment. TDIU, including on an extraschedular basis, may only be awarded for unemployability due to service-connected disabilities. See 38 C.F.R. § 4.16. Therefore, the Veteran's problems with his eyes, back, foot, bowels, and prostate cannot be considered. Consequently, this statement does not support unemployability for TDIU purposes. Accordingly, the Board finds that the noneconomic component is not met, and that the evidence does not raise a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities. As explained at length above, the evidence submitted in support of unemployability is not probative. The probative evidence does not show that he would be unable to work as a cook, but in fact supports a finding that he could obtain substantially gainful employment in that occupation. Even if he were unable to work as a cook, however, the record does not indicate that his hearing loss and tinnitus would render him unable to perform the activities required of a number of other occupations involving no more than minimal oral communication, and which are often performed in quiet environments, including occupations as a janitor, mail clerk or mail sorter, groundskeeper, and perhaps a file clerk. In addition, he could likely work as a packager. Although that occupation might entail some background noise, the May 2017 VA examiner did not suggest that the Veteran would be unable to work in environments with some level of noise, and there is no indication that background noise would affect his ability to safely perform the duties of a packager if they do not require more than minimal oral communication. His education, skills, training, and work experience do not preclude such employment, as these types of occupations do not require more than a high school diploma, prior skills training, or prior relevant work experience. If one or more of the occupations that the Board has listed as possible examples in fact requires experience or qualifications that the Veteran lacks, that does not in itself raise a reasonable possibility that he could not perform other occupations listed in these examples, or others not considered by the Board. Indeed, it is implausible on its face that the Veteran is unable to secure and follow a substantially gainful occupation that requires no more than minimal oral communication, putting aside the fact that the record does not show that his hearing loss and tinnitus actually limit him to such occupations, as explained above. Because there is not sufficient evidence to raise a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, referral of the case to the Director for extraschedular consideration of entitlement to TDIU is not warranted. See 38 C.F.R. § 4.16(b); Ray, 31 Vet. App. at 66; Snider, supra. By the same token, the Board finds that the persuasive evidence shows that Veteran's service-connected disabilities have not been sufficiently disabling as to prevent him from securing or following a substantially gainful occupation. Accordingly, the criteria for a TDIU, including via extraschedular referral, have not been met. See 38 C.F.R. § 4.16. Because the evidence persuasively shows that there is no reasonable possibility that the Veteran is unemployable due to his service-connected hearing loss and tinnitus, and persuasively shows that he could secure and follow substantially gainful employment in a range of occupations, there is not an approximate balance of positive and negative evidence on any issue material to the outcome of the claim. Rather, the evidence persuasively weighs against the claim. Accordingly, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.