Citation Nr: 21012590 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-30 963A DATE: March 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied.   FINDING OF FACT The Veteran’s service-connected disabilities have not precluded substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to July 1968. The case is on appeal from an August 2014 rating decision. The claim most recently came before the Board in July 2020 and was remanded for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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. Legal Criteria 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. § 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 any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. To meet the schedular requirements, there must be 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). Where these criteria are not met, but the veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (citing 20 C.F.R. § 404.1567). Facts The Veteran is seeking a TDIU. In a December 2011 TDIU application, he reported he last worked as a bookkeeper. The record also shows that the Veteran worked as a handyman. He stated he last worked full-time and became too disabled to work in 2008 due to his service-connected disabilities. He reported he has a GED and completed two years of college. The Board notes the Veteran’s service-connected disabilities include sinusitis, which has been rated 10 percent disabling from June 10, 2009 to February 23, 2012, 30 percent disabling from February 24, 2012 to June 14, 2019, and 50 percent thereafter; tinnitus, rated as 10 percent disabling from October 25, 2010; and bilateral hearing loss, rated as noncompensably disabling from October 25, 2010. The Veteran was afforded a December 2009 VA examination for his sinusitis in which the examiner indicated the Veteran’s chronic sinusitis has no effect on his usual occupation or his activities of daily living. He was afforded a March 2010 VA audiological examination in which the examiner reported the Veteran’s hearing loss has no effect on his occupation. The Veteran was afforded a June 2010 VA examination for his sinusitis in which the examiner similarly indicated his sinusitis has no effect on his occupation, but causes fatigue, shortness of breath with exertion and a decreased capacity for exercise. The Veteran was afforded a November 2010 VA examination in which the examiner found his sinusitis affects his ability to work, causing balance/dizziness problems, decreased concentration and poor social interactions. The Veteran reported the disorder caused other employees to avoid him due to constant nasal problems and that he experiences tightness in his ears and disorientation, along with difficulty concentrating. He reported the pressure in his ears is so great that it makes him feel as if he is “going to black out.” The Veteran was afforded January 2011 and February 2012 VA audiological examinations in which the examiner reported his hearing loss causes decreased concentration, poor social interactions and hearing difficulty. A February 2012 VA sinusitis examination report stated the Veteran’s sinusitis causes persistent headaches which makes it difficult to concentrate and would lead to increased absenteeism. The examiner reported his sinus condition would interfere with his employment if there are complex mental tasks and where increased absences are not tolerated. She stated the sinus disorder does not preclude light desk work. The claim for a TDIU was remanded by the Board in July 2018 for further development. Thereafter, the Veteran was afforded a June 2019 audiological examination in which the examiner indicated his hearing loss causes serious trouble hearing the TV, phone and general conversation. With regard to tinnitus, the examiner noted the disorder is distracting, annoying and “terrible” for the Veteran. In a June 2019 sinusitis examination, the examiner indicated as the Veteran is in a wheelchair, it would not be feasible for him to work in an occupational environment. In July 2020, the Board determined the claim for a TDIU should be remanded for referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). In a November 2020 decision, the Director determined that the overall evidence fails to support that the Veteran’s service-connected disabilities prevent all substantially gainful employment. Analysis The Board finds the Veteran’s service-connected disabilities have not prevented substantially gainful employment. While his sinusitis, hearing loss and tinnitus have caused some occupational impairment, the Board determines he is not prevented from all substantially gainful employment due solely to these three disabilities. The Veteran reported that he had worked as a handyman and most recently, that he had worked as a bookkeeper until 2008. The Board determines the medical evidence of record, including the VA examinations throughout the record, do not suggest that his sinusitis, hearing loss and tinnitus have prevented all substantially gainful employment. The Board acknowledges that the Veteran’s sinusitis has impacted his ability to work, including causing symptoms of headaches, fatigue, shortness of breath, dizziness and difficulty concentrating. Further, his hearing loss and tinnitus have caused decreased concentration, poor social interactions and hearing difficulty. However, based on the severity of the Veteran’s symptoms, and in light of his work experience and education which includes a GED and two years of college, the Board finds the service-connected disabilities have not prevented him from securing or following all substantially gainful employment. The Board is sympathetic to the impact caused by the Veteran’s service-connected disabilities, both professionally and personally. However, those problems have been compensated by the schedular ratings for the three disabilities, including for sinusitis which is currently rated as 50 percent disabling. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the Veteran’s disabilities caused some economic impairment, his assigned disability ratings contemplate his level of occupational impairment. Additionally, the Board acknowledges that in the prior July 2020 Board decision, the claim for a TDIU was remanded for referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). While the July 2020 decision directed a referral to the Director by the RO, the Board did not make a determination as to whether the Veteran’s service-connected disabilities prevent substantially gainful employment. Therefore, the Board currently has made its own determination regarding whether entitlement to an extraschedular TDIU is warranted, and it determines the preponderance of the evidence is against the claim. In sum, the evidence does not show that the Veteran’s service-connected disabilities preclude securing or following substantially gainful employment. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.