Citation Nr: 21011063 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-06 313 DATE: February 26, 2021 ORDER From January 2, 2012, through March 27, 2018, a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDINGS OF FACT 1. The Veteran stopped working on January 1, 2012. 2. Resolving any reasonable doubt in the Veteran’s favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected bilateral hearing loss during the period on appeal from January 2, 2012 through March 27, 2018. CONCLUSION OF LAW From January 2, 2012, through March 27, 2018, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1955 to January 1958. As pertinent here, in a July 2019 decision, the Board granted entitlement to a TDIU beginning March 28, 2018. The Board remanded the issue of entitlement to a TDIU prior to this date for extraschedular consideration. In a December 2020 memorandum, the Director of Compensation denied the claim. The appeal has since returned to the Board for further appellate consideration. Entitlement to a TDIU Prior to March 28, 2018 The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment during the initial rating period on appeal, specifically as a result of his service-connected bilateral hearing loss. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it 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) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: The Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis The Veteran’s disability rating prior to March 28, 2018 is 60 percent, and accordingly, he did not meet the minimum schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU in this case is on an extraschedular basis. See 38 C.F.R. § 4.16(b). For the reasons expressed below, the Board finds that the criteria for a TDIU on an extraschedular basis are met. During the August 2011 VA audiology examination, the functional loss due to hearing loss was described as trouble the TV with background noise as well as difficulty hearing with background noise and while in crowds. He also had difficulty hearing women’s voice. According to March 2012 private treatment records, the Veteran reported difficulty understanding conversation in all listening situations even while using his present behind the ear hearing aids. He further reported difficulty understanding speech in the presence of background noise and difficulty hearing women’s voices. During an August 2013 VA audiology examination, the impact on the Veteran’s ability to work was described as great difficulty understanding speech in virtually all situations even while wearing hearing aids. According to August 2013 private treatment records, the Veteran reported having significant difficulty communicating on the telephone and in-person had to constantly ask people to repeat. In September 2013, he reported that he was dependent on lipreading in order to communicate. During a May 2014 VA audiology examination, the impact on the Veteran’s ability to work was described as extreme difficulty hearing others both with and without his hearing aid and cochlear implant. In a July 2014 addendum opinion, the VA examiner opined that with amplification and reasonable accommodations as specified in the ADA, hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. The examiner added that employment would be more than feasible in a loosely supervised situation, which required little interaction with the public. The Veteran’s hearing loss should not be a barrier to a wide range of employment settings and many individuals with the Veteran’s degree of hearing loss or worse function well in many occupational settings. The examiner concluded that this was not to say the Veteran will not have some difficulties such as difficulty hearing in noisy environments and difficulty with face to face communication equipment such as speakers and intercoms, or in jobs that require attention to high pitched sounds such as monitoring medical equipment beeps or pings. In the August 2014 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was unable to maintain a gainful occupation due to inability to understand or communicate. He further noted that his work experience included self-employment as an insurance agent from 1964 to 2012 and a subsequent period of self-employment as a truck driver. In a statement submitted along with his TDIU application, the Veteran indicated that he was profoundly deaf and had difficulty hearing. He added that he could not obtain gainful employment selling insurance because he could not hear or understand people talking to him and had to sell his trucking business because he could not hear to be able to dispatch or talk with people. According to July 2014 private treatment records, the Veteran reported that he could not understand speech unless he could see the speaker’s face. In a September 2014 statement, the Veteran reported that he worked in the financial/clerical part of the business because he could not hear or understand people on the telephone or in person. He indicated that it was difficult or impossible to hear what they were saying. When he had to talk to someone, he used another office person to make the phone calls because he could not understand the other person without an “interpreter.” His hearing was so bad that the other person had to talk slowly and loudly so he could understand. Even with the cochlear implant, he still could not hear normal conversation. He worked 40 hours per week 8 hours a day until he sold the business because it was too difficult for him to conduct business with clients. He had to rely solely on his employees to interpret all conversations, which made doing business with clients impossible. HE added that he lost immeasurable time at work over the previous 12 months due to hearing impairment. He felt depressed because it was so difficult to communicate with personnel. Lastly, he noted that he would only go to work when he knew he would have someone with him to interpret because it was too embarrassing to talk on the phone. In a November 2016 addendum, a VA psychiatrist noted that because of the impaired hearing, the Veteran had to sell his business due to inability to communicate with customers especially over the phone. (Continued on the next page)   In an additional December 2016 TDIU application, the Veteran noted that he was the dispatcher/owner of a trucking company/insurance company. He explained that he sold his businesses because he could not hear or communicate on the phone with customers. In a statement associated with the application, the Veteran indicated that he struggled with hearing loss for many years that worsened over time. He explained that the hearing impairment interfered with his job. He was an insurance salesman for many years and had to sell his business because it was embarrassing to not be able to hear his clients. He tried to dispatch for his trucking company but could not communicate with customers or truck drivers. He added that he enjoyed working and did not want to retire but the hearing loss prevented him from working. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected bilateral hearing loss during the rating period in question. Here, the Veteran’s hearing loss prevented him from communicating with others, which was essential in both his insurance and trucking businesses. The Board finds the lay assertions competent and credible and that those statements were supported by the aforementioned medical evidence. Thus, with resolution of any doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU on an extraschedular basis from January 2, 2012, the day after his last day of work, is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.