Citation Nr: 21010566 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-67 576 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability on an extraschedular basis is granted. FINDING OF FACT The Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1946 to December 1947. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March and June 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board remanded the claim, as well as an increased rating claim for the Veteran’s service-connected tinnitus, to the Director of Compensation Service for extra-schedular consideration. In August 2019, the Director of Compensation Service granted the Veteran’s increased rating claim for tinnitus on an extraschedular basis and awarded a 20 percent evaluation, effective April 1, 2016. However, the Director denied the Veteran’s claim for entitlement to a TDIU, finding that the evidence of record did not show that the Veteran’s tinnitus rendered him unemployable. This matter was most recently before the Board in January 2020. At that time, the Board denied entitlement to a rating in excess of 20 percent for tinnitus and remanded the TDIU claim for further evidentiary development, to include a VA examination. Entitlement to a TDIU due to service-connected disability on an extraschedular basis is granted. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is currently in effect for tinnitus, rated as 20 percent disabling from April 1, 2016. As the Veteran has one service-connected disability which is rated less than 60 percent, the requirements of section 4.16(a) are not met. Although, the Veteran does not satisfy the percentage requirements set forth in section 4.16(a) for consideration of a TDIU, as noted, 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, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). As noted above, a negative opinion from the Director of Compensation Service was obtained in August 2019. A second negative opinion was obtained in December 2020, which is noted below. Although the Board is required to obtain the Compensation Service Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Thus, as the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) has been remanded and referred to the Director and the Director has issued a decision, the issue is now before the Board and must be addressed on the merits. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted); Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321(b)(1)] on appeal”). The Board finds that the evidence is in relative equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. On his VA Form 21-8940, received on July 5, 2017, the Veteran reported that his service-connected tinnitus rendered him unemployable. He worked in sales for a jet company from 2006 to 2008 and for an escrow services company from 2010 to 2011. The Veteran reported that he also owned a business from 1996 to 2016. He reported that he became too disabled to work in June 2011. The Veteran reported that he completed high school and one year of college. In support of his claim, the Veteran submitted multiple statements to the effect that his tinnitus prevented him from working. He indicated that he was unable to sleep for long periods of time due to his tinnitus, which resulted in daytime sleepiness and “suddenly doz[ing] off” during the day. See Veteran’s statements dated 2015-2021. Available medical evidence, including VA examination reports, demonstrate limitation caused by the Veteran’s service-connected tinnitus, notably lightheadedness, decreased concentration, sleep disturbance, and daytime somnolence. The Veteran underwent a VA audiological examination for hearing loss and tinnitus in August 2016. The Veteran reported that his tinnitus began during active duty and had steadily increased over the years. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s tinnitus impacted his ability to work. The examiner opined the following: The claimant reports the following overall functional impairment(s) from the tinnitus: “I am restricted in my skills for telephone sales which has impacted on my ability to earn a living because I’m usually in a groggy state. The tinnitus condition is steadily worsening as I age, ruining my life with no relief to look forward to. I can’t sleep and only do so for short periods from exhaustion. Usually about 1 to 2 hours. I haven’t been able to create new designs which is key to a home improvement business and I can’t make the requisite phone calls or send the necessary mark[et]ing emails to encourage activity. In other words, I don’t function normally and need help to simply exist.” As noted above, in August 2019, the Director of Compensation Service, inter alia, rendered a negative opinion as to consideration of a TDIU on an extraschedular basis. While the Director acknowledged that the evidence of record demonstrated that the Veteran’s service-connected tinnitus “markedly interfere[d] with his employment, to [the] point of preventing him from being productive,” the Director determined that the evidence did not show that the Veteran’s tinnitus rendered him unemployable. The Director opined in pertinent part, Even though sleep disturbance brought on by tinnitus markedly interferes with the Veteran’s occupation of creating new designs and making phone calls, there is no evidence that the Veteran cannot perform other sedentary job functions due solely to his tinnitus. The Veteran was afforded a VA examination via telehealth in July 2020. The Veteran reported that he experienced constant bilateral tinnitus. After speaking with the Veteran and reviewing the claims file, the examiner concluded that the Veteran’s tinnitus impacted his ability to work. The examiner stated, The tinnitus affects his sleep frequently. He states that he is unable to get a good night[’]s sleep due to the tinnitus. This makes him very tired during the day. He states that he cannot work because he falls asleep intermittently during the day. An addendum medical opinion was obtained in September 2020. After reviewing the claims file, the examiner determined that the Veteran’s tinnitus impacted his ability to work. The examiner opined, The tinnitus affects his concentration at times, but most importantly it prevents him from getting a good night[’]s sleep. The lack of rest is the issue that renders him unemployable. The reason being that he frequently falls asleep throughout the day affecting his productivity greatly. He worked in NYC and having conversations with others was an important part of his job. The claimant stated that the tinnitus affects his ability to sleep which makes him tired during the day. He has trouble concentrating and falls asleep in the middle of the day frequently. He is unable to hold a job due to the tinnitus and inability to concentrate for longer periods of time. As referenced above, in December 2020, the Director of Compensation Service again rendered a negative opinion as to consideration of a TDIU on an extraschedular basis. The Director determined that there was no evidence of inability to perform sedentary employment due to service-connected conditions. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After considering the evidence of record, the Board agrees with the conclusions of the August 2016, July 2020, and September 2020 VA examiners that the Veteran’s service-connected tinnitus impacted his ability to work. More specifically, the Board has considered the Veteran’s tinnitus-induced lightheadedness, decreased concentration, and sleep disturbance, as well as daytime somnolence. Based on the foregoing, and in light of his educational and occupational history, the Board finds that the Veteran’s service-connected tinnitus rendered him incapable of substantial gainful employment, to include sedentary employment. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected tinnitus rendered him unable to secure or follow a substantially gainful occupation. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of TDIU on an extraschedular basis. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.