Citation Nr: 21010055 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-32 197 DATE: February 24, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU), effective June 4, 2015, is granted. FINDING OF FACT As of June 4, 2015, the Veteran meets schedular requirements for a TDIU and his service-connected hearing loss and tinnitus result in his inability to obtain and maintain employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities have been met as of June 4, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1962 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for additional development in December 2017 and June 2019. In a December 2020 memorandum, the Director, Compensation Service, determined the overall evidence failed to show that the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented employment. TDIU The Veteran seeks a TDIU due to his service-connected disabilities. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. It is also 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: • The veteran’s history, education, skill, and training; • 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. 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 • 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The period on appeal began on September 18, 2013, the date the Veteran filed his claim of increased rating for his bilateral hearing loss disability. At this time, he received a 20 percent for his bilateral hearing loss and a 10 percent for tinnitus. As of June 29, 2016, the Veteran received a 50 percent rating for his bilateral hearing loss and a 10 percent rating for his tinnitus. As a result, the Veteran meets schedular requirements for a TDIU as of June 29, 2016. The Veteran has a high school education. He has advanced military police training and supervisory training from a university. He worked as a security guard. Prior to June 4, 2015, the evidence shows the Veteran was able to obtain and maintain employment. During this time, he worked as a security guard. He continued to work as a security guard until June 4, 2015. He voluntarily resigned. He contends that his resignation was necessary due to the worsening of his service-connected disabilities. The Board notes that the worsening of his service-connected disabilities was ultimately confirmed by VA examination, warranting the increase in disability rating as of June 29, 2016. The Veteran contends that his hearing loss and tinnitus resulted in difficulty understanding speech and commands. He was also unable to hear emergency vehicles and important messages at work. His inability to hear was detrimental to his ability to obtain and maintain a job based on his occupational history as a security guard. As a security guard, the Veteran was required to monitor the premises, including for strange noises and incidents. He was also required to be alert and be capable of responding in the event of an emergency. His service-connected hearing loss and tinnitus result in his inability to obtain and maintain a job consistent with these duties. As noted above, prior to June 29, 2016, the Veteran did not meet schedular requirements for a TDIU. The Director, Compensation Services, opined that the Veteran’s disabilities would not result in his inability to obtain employment. See December 2020 VA memo. Nonetheless, because the evidence shows the Veteran is unable to obtain and maintain employment consistent with his specific occupational history as a security officer, the Board finds a TDIU is warranted. Wages. Reasonable doubt has been resolved in the Veteran’s favor. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.