Citation Nr: 21007545 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-19 174 DATE: February 9, 2021 ORDER For the period from December 29, 2017, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU on an extraschedular basis, for the period prior to December 29, 2017, is remanded. FINDING OF FACT The Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the period from December 29, 2017. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period from December 29, 2017 are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1945 to July 1946. He died in February 2018. The appellant is the Veteran’s surviving spouse and she has been determined to be a valid substitute claimant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2019. At that time, the Board, among other things, granted the claim for a 50 percent disability rating for the Veteran’s bilateral hearing loss, effective December 29, 2017. The appellant appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Remand entered into by the Veteran and VA, CAVC vacated the September 2019 Board decision to the extent the Board did not adjudicate the Veteran’s claim for a TDIU as part of the increased rating claim for hearing loss. TDIU for the period from December 29, 2017 The appellant contends that the Veteran’s bilateral hearing loss and tinnitus prevented him from obtaining and maintaining substantially gainful employment. In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran is rated at 40 percent for bilateral hearing loss from September 6, 2012 and 50 percent from December 29, 2017. The Veteran is also rated at 10 percent for tinnitus. The Veteran has a combined disability rating of 60 percent effective December 29, 2017. For purposes of determining if the Veteran meets the schedular requirements for TDIU, the Veteran’s disabilities will be considered one disability rated as 60 percent, based on the common etiology of noise exposure causing hearing loss and tinnitus. 38 C.F.R. § 4.16(a). The record reflects that the Veteran was a high school graduate and had one year of technical training. The Veteran worked as a real estate agent engaged in residential sales for the same employer from March 1985 to March 2009. The Veteran’s widow submitted a statement noting that the Veteran’s hearing loss caused him to misunderstand people and severely impacted his ability to communicate with others. The appellant related that she had to be facing the Veteran so he could read lips in order for him to understand her and that she constantly had to yell and repeat herself in order to communicate with the Veteran. The appellant submitted a November 2020 vocational assessment report performed by a private rehabilitation counselor. The counselor reviewed the claims file and interviewed the appellant about her observations of the effects of hearing loss on the Veteran prior to his death. The counselor reviewed the Veteran’s education and employment history and noted his difficulty performing his duties as a real estate agent towards the end of his career due to his difficulty hearing and maintaining conversations with clients. The counselor opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment since at least November 2015 due to his bilateral hearing loss and tinnitus. The counselor explained that the Veteran’s severe limitations in interacting with coworkers, supervisors and the public made him incapable of meeting the standard requirements of pace, productivity and workplace communication. VA treatment records confirm the severe nature of the Veteran’s bilateral hearing loss. A September 2016 audiology consultation noted that the Veteran’s hearing was not considered to be “socially adequate.” In September 2017 the Veteran reported that he experienced worsening hearing loss and increased difficulty in all situations, especially on the telephone. The Board finds the opinion of the private counselor competent and entitled to probative weight. The opinion is based on a review of the relevant records and interview of the appellant and references relevant vocational literature and research. The Board acknowledges that the October 2017 VA examiner concluded that the Veteran’s hearing loss had no impact on the ordinary conditions of daily life, including the ability to work. However, this conclusion is belied by the evidence reflecting that the Veteran’s hearing loss was severe and impacted his ability to communicate with others, as noted in the VA treatment records and the appellant’s lay statements. Based on the foregoing, the Board finds that the private evaluation and lay statements establish that the Veteran’s service-connected disabilities precluded him from performing any type of gainful employment, warranting a TDIU on a schedular basis for the period from December 29, 2017. REASONS FOR REMAND Entitlement to a TDIU, on an extraschedular basis, for the period prior to December 29, 2017 is remanded. The Veteran did not have a disability rating of 60 percent or more or a combined disability rating of 70 percent prior to December 29, 2017. Although the Veteran’s service-connected disabilities did not meet the schedular requirements for a TDIU, “[i]t is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by the Agency of Original Jurisdiction (AOJ) to the Director of the Compensation Service for extraschedular consideration. Here, as noted, the Veteran was employed as a real estate agent for over 20 years before retiring in March 2009. The appellant contends that the Veteran retired because of the difficulty he had performing his job caused by his hearing loss. Also, as noted, the private rehabilitation counselor opined that the Veteran was precluded from obtaining or maintaining substantially gainful employment from November 2015. Based on the foregoing, the Board concludes that a remand is necessary for the AOJ to refer the claim to the Director of Compensation Services for extraschedular consideration for the period prior to December 29, 2017. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to December 29, 2017 to the Director of the Compensation Service for extraschedular consideration. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.