Citation Nr: 21009902 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-17 625 DATE: February 23, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, prior to September 15, 2010 is denied. FINDING OF FACT Prior to September 15, 2010, the Veteran’s service-connected bilateral hearing loss and tinnitus did not preclude him from obtaining and maintaining substantially gainful employment consistent with his level of education, prior work history, and training. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met prior to September 15, 2010. 38 U.S.C. §§ 1155, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.341, 4.16, 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 to March 1958. He died in June 2017. Thereafter, the Agency of Original Jurisdiction (AOJ) recognized the appellant, the Veteran’s surviving spouse, as the substitute claimant. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. As such, she has been substituted for the appellant for purposes of processing the claim to completion. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in July 2020. In its decision, the Board found that the issue of a TDIU from September 15, 2010 was moot as the Veteran was in receipt of special monthly compensation (SMC) based on having a total schedular rating for depressive disorder and an additional service-connected disability independently ratable at 60 percent or more as set forth under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Board then remanded the issue of a TDIU prior to September 15, 2010 for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU, to include on an extraschedular basis, prior to September 15, 2010 is denied The appellant contends that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining gainful employment prior to September 15, 2010. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if 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). From July 7, 2010, to September 14, 2010, the Veteran was service-connected for bilateral hearing loss, rated as 40 percent disabling, and tinnitus, rated at 10 percent disabling. The Veteran’s total disability rating for this period was 50 percent. The Veteran did not meet the schedular criteria for a TDIU prior to September 15, 2010. The Veteran did not a have single service-connected disability ratable at 60 percent or more. While the Veteran did have a service-connected disability rated at 40 percent, there was not a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where percentage requirements of section 4.16(a) are not met, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, the July 2020 Board remand requested the AOJ refer the Veteran’s claim to the Director for consideration of whether a TDIU was warranted on an extraschedular basis. Such was accomplished and an Advisory Opinion was issued by the Director in December 2020. As acknowledged in the Court in Ray v. Wilkie, the Board’s decision to refer the matter to the Director of Compensation and Pension for an Advisory Opinion is a quasi factual finding. 31 Vet. App. 58. It is not conclusive on the matter of whether an extraschedular TDIU award is warranted, but rather the Board found the evidence suggestive that a TDIU award may be possible in light of contentions and evidence in the record that the Veteran’s hearing loss and tinnitus interfered with employment during the relevant time period in question. Thus, the Board remanded the matter in July 2020 and the advisory opinion was obtained in December 2020. As the matter has now returned to the Board, the Board may now consider de novo whether TDIU is warranted from July 7, 2010, to September 15, 2010, on an extraschedular basis. For the reasons outlined below, the Board concludes the preponderance of the evidence is against a finding that a TDIU award is appropriate for this time period. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For reasons outlined below, the Board finds a TDIU on an extraschedular basis was not warranted prior to September 15, 2010, the preponderance of the evidence does not support the Veteran was unable to maintain substantially gainful employment due solely to his service-connected bilateral hearing loss and tinnitus. In his August 2011 TDIU application, the Veteran indicated that he had last worked as a cook in 1999. He noted that his internal injuries from a physical assault prevented him from securing or following a substantial gainful occupation. See August 2011 Statement. The Board notes that the Veteran was not service-connected for any additional disabilities at this time and would not be until September 15, 2010 – after which a SMC was granted. The Veteran indicated that he had not completed high school. During his January 2012 VA audiological examination, the Veteran indicated that his hearing loss made him unable to hear instructions at work, making it impossible for him to work. Regarding his tinnitus, the Veteran related that it caused him to stop what he was doing in order to reorient himself. In a separate examination report, the examiner who performed the examination noted that the Veteran’s bilateral hearing loss and tinnitus could have an effect on his ability to hear and understand; however, she found that this would not have an effect on his ability to perform physical and sedentary activities of employment. See January 2012 Examination Report. In May 2019, a private examiner opined that the Veteran’s depressive disorder prevented the Veteran from working. See June 2020 Private Treatment Records. The Board notes that the Veteran was not service-connected for a psychiatric disorder during the appellate period in question. In June 2020, another private examiner opined that the Veteran’s depression, posttraumatic stress disorder, headaches, bilateral hearing loss, and tinnitus, in combination impacted his ability to work. See June 2020 Private Treatment Records. The Board notes that the Veteran was not service-connected for a psychiatric disorder or headaches during the appellate period in question. As noted above, the Director issued an Advisory Opinion in December 2020. She reviewed the Veteran’s disability ratings and the VA examination results of record for the appellate period. She found that although there were limitations due to the Veteran’s hearing loss and tinnitus, the preponderance of the evidence did not show that the service-connected conditions prohibited the Veteran from obtaining or maintaining gainful employment. The Veteran may not have held the ability to perform positions which required him to be under direct communication with others, but during his lifetime the Veteran had general labor experience in other industries which would have provided him the ability to work in positions that would allow for limited interaction with others. Therefore, she determined that the overall evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment. In rendering a closer examination of the evidence, the Board finds the evidence does not support TDIU prior to September 15, 2010. See Ray, 31 Vet. App. 58 (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). Rather the evidence shows the Veteran may have had significant psychiatric limitations due to nonservice-connected disabilities, his service-connected disabilities would not preclude the Veteran from the ability to secure and follow a substantially gainful occupation. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. No medical evidence indicates that the Veteran’s service-connected bilateral hearing loss and tinnitus prevented him performing the physical requirements of employment. While the Veteran did have difficulty with hearing others and would need to reorient himself, this was not found to prevent the Veteran from performing other physical requirements of employment such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. Again, the evidence overwhelmingly indicates, however, that the Veteran’s bilateral hearing loss and tinnitus did not prevent him performing the mental requirements of employment. The Board also once again notes that the Veteran was not service-connected for any psychiatric disabilities at this time. (Continued on the next page)   The Board does not doubt that the Veteran’s service-connected bilateral hearing loss and tinnitus caused impairing symptomatology. The evidence does not support, however, that these disabilities precluded substantially gainful employment. The Veteran, on his TDIU application, conceded that his unemployability was due to physical injuries incurred from a physical assault and not due to his hearing loss or tinnitus. Indeed, it was not until 2012, that he indicated to a VA examiner that he felt his hearing loss and/or tinnitus made it “impossible” to work. In any case, for the 2010 time period in question, the evidence does not support his unemployability was due to his service-connected disabilities. In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work. Accordingly, entitlement to a TDIU on an extraschedular basis prior to September 15, 2010 is not warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.