Citation Nr: 21009408 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-50 962 DATE: February 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) as of August 16, 2016, is granted. FINDING OF FACT The evidence of record establishes that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation as of August 16, 2016. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) as of August 16, 2016, have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400(o), 4.1, 4.16, 4.13, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1952 until his honorable discharge in September 1956. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. §§ 20.902(c), (d). This case comes before the Board on appeal from a March 2017 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran did not elect to have a Board hearing. In an April 2019 decision, the Board denied the Veteran’s claim for TDIU. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). Based on a Joint Motion to Remand submitted by the parties, CAVC entered an order in February 2020 vacating the Board’s decision in full and remanding the matter to the Board for readjudication. Evidentiary Standards The personalized nature of TDIU determinations is evident from the title of 38 C.F.R. § 4.16: “Total disability ratings for compensation based on unemployability of the individual.” (Emphasis added). In deciding TDIU claims, it is the Board’s responsibility to evaluate the entire record on appeal, 38 U.S.C. § 7104(a), giving due consideration to all pertinent medical and lay evidence. See Todd v. McDonald, 27 Vet. App. 79, 85‒86 (2014); 38 C.F.R. §§ 4.1, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. TDIU A request for TDIU is not a separate claim for benefits but rather “is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule.” Norris v. West, 12 Vet. App. 413, 420‒21 (1999). According to 38 C.F.R. § 4.16(a), a veteran who does not qualify for a schedular 100 percent disability rating may be entitled to TDIU if the veteran is unable to secure or follow substantially gainful employment by reason of his or her service-connected disabilities and: 1) The veteran has one service-connected disability rated at 60 percent or more; or 2) The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. See also 38 C.F.R. § 4.25 (combined ratings table). As to one 60 percent disability or one 40 percent disability in combination, the following are considered “one disability”: (1) disabilities resulting from common etiology or a single accident, and (2) disabilities affecting a single body system. 38 C.F.R. § 4.16(a). If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(a). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. “Substantially gainful employment” includes an economic component; that is, a veteran’s ability to earn more than marginal income as determined by the U.S. Department of Commerce, Bureau of Census, as the poverty threshold for one person. Ray v. Wilkie, 38 Vet. App. 58, 72 (2019); 38 C.F.R. § 4.16(a). It also includes a non-economic component; that is, whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 38 Vet. App. at 73. When determining whether a veteran can “secure and follow substantially gainful employment,” the Board, as appropriate, should consider: 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 (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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. 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The Board is precluded from considering the Veteran’s age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Ray, 38 Vet. App. at 72, 75‒76. Analysis Effective date Because the Board is granting entitlement to TDIU, the Board finds it is necessary to address the effective date of the award, for the benefit of the Veteran and the RO. The Veteran has also raised the issue in his December 2020 appellate brief. On August 16, 2016, the Veteran filed a claim for an increased rating for his bilateral hearing loss. In a November 2016 rating decision, the RO granted the Veteran an increased rating of 50 percent, effective August 16, 2016. In December 2016, the Veteran filed a claim for TDIU. In his December 2020 post-CAVC remand appellate brief, the Veteran asserted that because he filed new and material evidence relating to his hearing loss and TDIU within one year of the RO’s November 2016 rating decision, his claim for TDIU has been pending since August 16, 2016. The Board agrees. A request for total disability evaluation based on individual unemployability (TDIU) is “part and parcel” of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 453‒55 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating) (citation omitted). In this case, the Veteran sought an increased rating for bilateral hearing loss, but in the November 2016 rating decision, the RO did not award him the maximum disability rating possible. 38 C.F.R. § 4.85(h), Diagnostic Code 6100 (maximum possible rating is 100 percent). Within one year of the November 2016 rating decision, he presented evidence of unemployability due to his bilateral hearing loss, and the RO obtained a new VA examination for his bilateral hearing loss. As such, his claim for an increased rating for bilateral hearing loss did not become final. See 38 C.F.R. § 3.156(b) (new and material evidence submitted withing one year of a rating decision “will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period[.]”). Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his August 16, 2016, claim for an increased rating for bilateral hearing loss. See Rice, 22 Vet. App. at 454‒55. Schedular criteria As of August 16, 2016, the Veteran was service connected for the following disabilities (and associated ratings): 1. Tinnitus (10 percent) 2. Residuals of a fractured fifth metacarpal of the right hind with arthritis (10 percent) 3. Bilateral hearing loss (50 percent) Because his tinnitus and bilateral hearing loss stemmed from a common etiology and effect a single body system, they are to be treated as a single disability. 38 C.F.R. §§ 4.16(a)(2), (3). As such, their combined rating is 60 percent. 38 C.F.R. § 4.25. Therefore, the Veteran has one single disability rated at 60 percent, thus satisfying the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). Substantially gainful employment The Veteran has generally asserted that his bilateral hearing loss is the main factor that he is unemployable, but his inability to grip is also a key factor that precludes him from being employable. April 2017 VA Form 21-0958, Notice of Disagreement. In his January 2019 appellate brief before the Board, the Veteran asserted his bilateral hearing loss had worsened since his last VA examination in February 2017. Because the Board is granting the Veteran entitlement to TDIU, which constitutes a full grant of benefits sought on appeal, the Board finds remand is unwarranted for a new VA examination as to any of the Veteran’s current service-connected disabilities. Economic component The Veteran has submitted multiple documents relating to his employment history and earned income. A review of the Veteran’s employment history is necessary. In July 1972 and April 1987, the Veteran submitted VA Form 21-527, “Income-Net Worth and Employment Statement.” According to his April 1987 VA Form 21-527, the Veteran worked as an auditor for over 20 years, with a loss of one year due to his nonservice-connected back condition, earning, at most, $24,000.00 yearly. In December 2016, the Veteran submitted VA Form 21-8940, an application for compensation based on unemployability, in which he stated he was self-employed in management from 2011 to 2015, and he worked 20 hours per week, earning, at most, $1200.00 per month. He indicated his bilateral hearing loss began to affect his full-time employment in 2012, and the last time he worked full-time was in 2014. The most he earned in one year was $35,000.00, in 2001, as a gas measurement specialist. In his December 2020 appellate brief, the Veteran asserted that he has not worked in any capacity since 2012. He attached an appendix to his December 2020 appellate brief. As part of the appendix, he included another VA Form 21-8940. In it, he stated that his current service-connected disabilities affected his employment as of September 2012, and he last worked full-time in 2008. The most he made in one year was $29,429.00, as a gas measurement specialist in 1995. The Board has reviewed his listed employment within the VA Form 21-8940, which includes full-time work from 2003 to 2005 and from 2006 to 2008, and part-time work from 2011 to 2012. The Board has also reviewed his associated earnings. The Veteran also attached as part of his appendix his personal records of earnings from the Social Security Administration (SSA). His SSA earnings records indicate he worked for various employers from 1978 through 2012, earning various levels of yearly income, the most being $29,429.70 in 1995. The Veteran’s yearly income began to decrease sharply in 2003. The most he earned thereafter was $10,154.48 in 2012. He did not have earnings in 2009 or 2010. The Board finds the Veteran is competent to report his employment history and earnings. The Board also finds his statements credible and probative, but, perhaps, he confused some dates. The Board does not find this to be problematic. The documented SSA evidence is likewise credible and probative, and it supports many of the Veteran’s assertions. Considering the economic evidence as a whole, the Board finds the Veteran’s earning capacity falls below the poverty threshold for one person over the age of 65, which was $12,413.00 in 2020, the most recently revised threshold. See United States Census Bureau, Poverty Thresholds, 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited February 15, 2021). Non-economic component In July 1972 and April 1987, the Veteran submitted VA Form 21-527, “Income-Net Worth and Employment Statement.” He indicated he completed four years of collegiate education. In his December 2020 VA Form 21-8940, the Veteran reported he obtained a bachelor’s in business administration in 1965. Prior to 1969, he worked as a salesman, an accountant, and as a self-employed small engine serviceman. After 1969, he worked as an accountant. Due to a nonservice-connected back condition, he had to quit his employment in 1986. He tried to work in clerical positions on two occasions in March 1987 but was unable to continue employment. He did return to work full-time from 2006 to 2008 and part-time from 2011 to 2012. His employment, full-time and part-time, generally consisted of being an RV park attendant, a school bus driver, and a salesman for various periods of time. As part of his appendix to his December 2020 appellate brief, the Veteran stated that he left his last employment in 2012 as a park attendant due to nonservice-connected conditions, but that his service-connected disabilities had worsened. Consequently, he was unable to return to work. During his employment as an RV attendant, he had trouble hearing and interacting with customers, speaking on the phone, and was largely unable to interact with coworkers due to his bilateral hearing loss and tinnitus. Hearing aids have not helped his hearing disability. A VA-contracted examiner documented similar complaints during a February 2017 examination. As a bus driver, he experienced problems with his right hand, which affected his ability to grip the wheel. He stated his right-hand disability has worsened. He has trouble writing, typing, driving, and holding objects because he is right-hand dominant. The 2017 VA-contracted examiner documented similar complaints by the Veteran. The examiner noted functional loss at that time consisting of an inability to form a tight grip and repetitively grasp items. The Board finds the Veteran is competent to report his physical sensations associated with his bilateral hearing loss, tinnitus, and right-hand disabilities. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Veteran is also competent to report his functional limitations, to include general onset, worsening, and severity, as well as his experiences in relation to his service-connected disabilities. Id. The Board finds the Veteran’s statements credible and probative as to whether he has a physical inability to obtain substantially gainful employment. Of most significance to the Board is the private employability evaluation submitted by the Veteran as part of the appendix to his December 2020 appellate brief. A vocational consultant, P.T., with significant experience and qualifications, including a Master of Industrial and Organizational Psychology, a Bachelor of Psychology, and who is certified disability management specialist, provided an extensive report as to the Veteran’s employability. She reviewed the Veteran’s entire claims file, to include his military service records, educational records, employment records, and medical records, and conducted a telephonic interview with the Veteran and his wife in November 2020. P.T. provided an occupational analysis based on standard vocational resources, which she identified in her report. She analyzed the Veteran’s most recent occupations under these standards, to include his positions as an RV park attendant, salesman, bus driver, and geological aide. Her analysis was thorough, clear, and based on accurate facts and reliable resources. She opined that the Veteran’s service-connected disabilities “have at least as likely as not precluded his ability to secure and follow a substantial gainful occupation, to include unskilled sedentary employment, since at least August 2016 to the present.” She reasoned that the Veteran’s bilateral hearing loss and tinnitus have at least as likely as not precluded his ability to interact appropriately and effectively with others, sustain an adequate pace and level of productivity, and work for consecutive hours. This is due to his difficulty communicating with others and difficulty concentrating secondary to his tinnitus and daytime fatigue due to sleep impairment. P.T. then discussed particular medical and lay evidence of record that supported her opinion. She explained that the Veteran’s bilateral hearing loss and tinnitus would preclude his ability to hear important work instructions and safety signals, and would hinder his ability to communicate effectively with others, which are “basic requirements for all competitive employment . . . to include sedentary unskilled work.” As to his right hand disability, she opined that his arthritis contributes to his inability to secure and follow gainful employment. His right hand disability “causes limitations in manual dexterity and fine motor skills that would prevent him from performing a full range of tasks in even sedentary employment and contribute to his inability to sustain adequate pace and productivity.” She relied on the medical and lay evidence of record documenting his functional loss of his right hand. She then discussed how his employment as a bus driver was impacted by the right hand disability and how her interview with the Veteran further supported her conclusion. Finally, P.T. discussed the Veteran’s skills and education. She opined that the Veteran’s degree in Business Administration from 1965 and any skills or knowledge he acquired at that time “would be antiquated and would not readily transfer to today’s competitive environment.” The Veteran possessed basic computer skills, but she opined his service-connected disabilities would prevent him from expanding on those skills. The Board finds P.T.’s qualifications and experience, as documented in her resume submitted with the Veteran’s December 2020 appellate brief, make her competent to evaluate the Veteran’s occupational abilities and outlook and render an opinion on subject. The Board also finds P.T.’s opinions and rationales credible and highly probative of the Veteran’s employability, or lack thereof. Considering the non-economic evidence of record as a whole, the Board finds that while there is no evidence that the Veteran necessarily lacks the mental ability to obtain substantially gainful employment, his physical limitations due to his service-connected disabilities are such that they significantly preclude him from doing so. As documented by the Veteran’s own statements, the medical evidence, and P.T.’s thorough evaluation, the Veteran’s bilateral hearing loss and tinnitus prevent him from having meaningful communication with others, which might include customers and coworkers. The Board reasonably finds that such limitations would necessarily prevent him from obtaining meaningful employment in practically every reasonable sector, whether skilled or unskilled, or whether sedentary or active. Moreover, when coupled with his limited ability to grasp and write, and his limited computer skills due to his service-connected right hand disability, his ability to obtain substantially gainful employment is further limited. Finally, the Veteran is certainly not “unskilled” or “uneducated,” but the Board agrees with P.T. that his skills and knowledge are outdated, having last used his educational skills and expertise in the 1980s. Given that his ability to acquire new skills in a proficient manner is impeded by his service-connected bilateral hearing loss and tinnitus, as discussed by P.T., the Board is further convinced he is not able to obtain substantially gainful employment. (Continued on the next page)   Conclusion The evidence of record establishes that the Veteran’s claim for TDIU was pending as of August 16, 2016. The evidence further establishes that the Veteran meets the TDIU schedular criteria and that he is unable to obtain substantially gainful employment due to his service-connected disabilities. Accordingly, entitlement to TDIU is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.