Citation Nr: 21007283 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-05 446 DATE: February 9, 2021 ORDER From September 30, 2008 to March 2, 2011, a total disability rating due to individual unemployability (TDIU) on an extraschedular basis is granted. REMANDED Entitlement to an increased rating for bilateral hearing loss, greater than zero percent before October 9, 2018 and greater than 30 percent thereafter, is remanded. FINDINGS OF FACT 1. A TDIU rating has previously been established for this Veteran from March 2, 2011 forward; that is the date at which the Veteran reached a combined 70 percent disability rating. 2. Prior to March 2, 2011, the Veteran’s combined disability rating was 50 percent or less, and does not meet the minimum threshold percentage standards established by regulation for a schedular TDIU rating. 3. From September 30, 2008 to March 2, 2011, the evidence is at least in equipoise that by reason of his service-connected disabilities alone, the Veteran was precluded from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria to establish entitlement to an extraschedular TDIU rating from September 30, 2008 to March 2, 2011 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1986 to June 1989. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in November 2016 to present testimony on the issues on appeal. This appeal was last before the Board of Veterans’ Appeals (Board) in July 2019 at which time additional evidentiary development was requested to comply with due process requirements. Regarding the appeal seeking a TDIU rating before March 2, 2011 only, the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has now been returned to the Board for further appellate review. Although an additional remand is required to comply with due process requirements for the appeal seeking an increased rating for bilateral hearing loss, the records in question for that appeal are not relevant to the period on appeal for the TDIU rating as the relate to a later period in which TDIU is already established, thus adjudication on this issue may proceed. Moreover, there can be no prejudice to the Veteran in failing to obtain the audiograms sought or provide adequate notice as to their unavailability in regard to this issue as the TDIU claim is granted herein. From September 30, 2008 to March 2, 2011, an extraschedular TDIU rating is granted. A TDIU rating may be granted where a Veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). If there is only one such disability, it must be rated at 60 percent or more, and if as here, there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In a claim received by VA on September 30, 2008, the Veteran sought service connection for additional residuals of his already service-connected pneumothorax, specifically including muscle damage to his back and scarring. Subsequently, service connection was granted for scarring, muscle group paresthesia, and degenerative arthritis of the spine as of this date of claim. In October 2008, the Veteran also submitted statements that he was unable to perform his duties in what appears to be one or more family businesses due to his back problems. The employer noted that the Veteran could only work for short periods and had trouble with various physical tasks in janitorial and electrical work. Employer letters, October 2008. On this basis, the Board will infer a claim for TDIU benefits as a part of the Veteran’s claim received on September 30, 2008. The Board acknowledges that the medical and lay evidence of record indicates the Veteran has also sustained significant nonservice-connected or post-service injuries, including a motor vehicle accident in August 2003 and various industrial injuries from a career in construction. Indeed, in January 2007 the Veteran reported his service-connected pneumothorax and surgical history but reported that he “recovered from this and did not have any complaints prior to this [August 2003] vehicle crash.” Private treatment record, January 2007. However, service connection is in effect as described above for the period on appeal, and the record does not clearly distinguish the effects of nonservice-connected back or spine conditions from those of the service-connected condition, and in such cases the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Additionally, the Veteran reports that he was last engaged in substantially gainful employment in or around September 2008. The record contains various points at which the Veteran reports ceasing such employment. He reported working in a tire shop at least through July 2008. See, e.g., Vocational rehabilitation records, July 2008; VA treatment records, May 2008. In December 2018, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and listed November 11, 2008 as the date his disability affected full-time employment, the date he last worked full-time, and the date that he became too disabled to work. The following month, in January 2019, the Veteran submitted the same form, but listed 2008 generally without identifying a month as the date he last worked full-time, 2001 as the date that his disability affected his full-time employment, and 2016 as the date he became too disabled to work. In October 2008, his VA treatment records show that he reported hurting his back ‘many times’ while doing construction” and was looking for less physical work but remained active doing swimming and push-ups. The Veteran variously reported working part-time and doing janitorial work with his dad. VA treatment records, October 2008. In a late January 2009 private spine consultation, the Veteran reported not working in the last 5 months, which would approximately equate to not working since September 2008. In a November 2009 VA examination, the Veteran reported being unemployed for less than a year and being “scared of working.” Viewed collectively, the Board finds that while a precise date that the Veteran was last employed in substantially gainful employment is not ascertainable based on the evidence before the Board, the date of the Veteran’s claim on September 30, 2008 is the best identifiable date based on the evidence and appears to be consistent with the time at which the Veteran reports becoming too disabled to work. As such, the Board identifies the September 30, 2008 date of claim as the date from which an extraschedular TDIU may be established. Additionally, the Veteran was requested to supply the necessary information to process his request for a TDIU rating. See, e.g., Notification letters, August 2009. The Veteran did not complete either of the two VA Form 21-8940 TDIU applications that he eventually submitted in January 2019 and December 2018 to document the number of hours worked and the rate of pay for his employment ending in 2008. These submitted forms also contained information provided by the Veteran that was internally inconsistent between each form. Ultimately, the Veteran has not provided adequate detail for the Board to establish whether or at what point his part-time employment in 2008 may have become marginal employment by either being in a family business or sheltered workplace, or by earning an annual income at or less than the federal poverty threshold for one person. See 38 C.F.R. § 4.16(a). Based on the evidence of record, September 30, 2008 is the most nearly ascertainable date at which the Veteran became unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. During this period, the Veteran was in receipt of service connection for paresthesia of the right side group II muscles rated as 20 percent disabling, status post left pneumothorax postoperative on the right with mild obstructive defect rated as 10 percent disabling, residual scars associated with the above rated noncompensably (zero percent) disabling from September 30, 2008 to October 5, 2009 and 20 percent thereafter, degenerative arthritis of the spine rated as 10 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rated zero percent disabling. These service-connected disabilities resulted in a combined rating not greater than 50 percent prior to March 2, 2011 (not including a temporary total rating for a period prior to the present appeal). As such, the minimum percentage requirements for TDIU on a schedular basis are not met, and the Board turns to consideration on an extraschedular basis. 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. Thus, the Board submitted this claim for referral to the Director, Compensation Service, for extra-schedular consideration through a July 2019 remand. The Director responded by indicating that in this case the overall evidence did not support the contention that any of the Veteran’s service-connected disabilities or a combination of those disabilities created an exceptional situation that prevented gainful employment prior to March 2, 2011. Determination notice, December 2020. However, that determination is not binding on the Board, and the Board finds instead that the evidence is at least in equipoise, or an approximate balance of positive and negative evidence on this matter. In determining whether the Veteran can obtain and maintain substantially gainful employment, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) listed some factors the Board may consider to help guide its determination. In Ray, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) has both an economic and a noneconomic component. Ray, 31 Vet. App. at 73. The Court further held that “[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to”: (1) The veteran’s history, education, skill, and training; (2) Whether the veteran has the 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, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, “By discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” Id. at 62. Here, the Veteran has a limited educational background and narrow area of expertise in manual labor positions that require a level of physical exertion for which the Veteran has significant limitations, particularly with regard to his service-connected degenerative arthritis of the spine with dextroscoliosis. See Employer letters, supra (noting the Veteran’s “back” problems as the primary source of his inability to perform at work). In all, and where the Board is unable to distinguish the service-connected back/spine impairments from any nonservice-connected spine impairments, the evidence is ultimately found to be in an approximate state of equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for the period from September 30, 2008 until a schedular TDIU rating was established as of March 2, 2011. The Board will resolve reasonable doubt in the Veteran’s favor and establish an extra-schedular rating for the period sought. The appeal is granted. REASONS FOR REMAND Entitlement to an increased rating for bilateral hearing loss, greater than zero percent before October 9, 2018 and greater than 30 percent thereafter, is remanded. The Board’s prior July 2019 remand directed the agency of original jurisdiction (AOJ) to attempt to obtain and associate with the claims file two VA audiograms from November 2012 and March 2017 which were referenced in the Veteran’s VA treatment records, but whose complete audiometric results were not fully recorded within the existing records. A December 2020 supplemental statement of the case (SSOC) stated that the actual audiogram results are not available for review. VA has a duty to make as many requests as are necessary to obtain relevant records from a Federal department or agency, including medical records from VA facilities. 38 C.F.R. § 3.159(c)(2). VA may end such efforts only upon determination that the records sought do not exist or that further efforts to obtain them would be futile. Id. However, regulations governing VA claims for benefits also establish that VA has a duty to adequately notify a claimant of an inability to obtain relevant records. 38 C.F.R. § 3.159(e). Compliant notice to the Veteran has not been issued in this case, and a remand is required to do so. The matter is REMANDED for the following action: Send the Veteran notice in compliance with the requirements of 38 C.F.R. § 3.159(e), in particular, providing a full explanation of the efforts VA made to obtain the November 2012 and March 2017 audiogram records and notice that VA will decide the increased rating claim based on the evidence of record unless the Veteran has other relevant evidence to submit. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, 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.