Citation Nr: 21013123 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-32 750 DATE: March 8, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 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 from August 1971 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2015, December 2016, May 2020, and September 2020. The purpose of the September 2020 remand was to have the RO adjudicate the Veteran’s April 2020 claim for an increased rating for service-connected bilateral hearing loss, and subsequent readjudication of the Veteran’s claim for entitlement to a TDIU rating. The Veteran’s April 2020 claim for an increased rating for service-connected bilateral hearing loss was adjudicated in a December 2020 rating decision. The Veteran’s claim for entitlement to a TDIU rating was then readjudicated in a January 2021 supplemental statement of the case. Therefore, there has been substantial compliance with the Board’s September 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to a TDIU now returns to the Board for further proceedings. Entitlement to a TDIU rating The Veteran contended an entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id. When a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating may never nevertheless be warranted where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The question of unemployability or the veteran’s ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). 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). 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). The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361(1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran does not meet the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a). For example, the Veteran is service connected for tinnitus, which is rated 10 percent from May 14, 2012, and bilateral sensorineural hearing loss, which was rated 0 percent from June 30, 2014. These issues present a combined rating of 10 percent. Thus, the Veteran does not have a disability rated at least 60 percent, nor does he have at least one disability rated at least 40 percent with an additional disability that creates a combined evaluation of at least 70 percent. Nevertheless, when a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning, 4 Vet. App. 225. At the Veteran’s October 2012 VA examination to evaluate his hearing loss, the examiner stated that a Veteran’s tinnitus did not impact ordinary conditions of daily life, including ability to work. In the April 2016 VA examination, the Veteran’s tinnitus and hearing loss were noted to impact ordinary conditions of daily life, including ability to work. However, the Veteran stated these impacts consisted of only sometimes having to ask for repetitions while talking on the phone, and sometimes waking up from his tinnitus. The December 2020 VA examiner again found he Veteran’s tinnitus and hearing loss were noted to impact ordinary conditions of daily life, including ability to work. However, at this time, the Veteran noted he was working part time, and he again stated he only sometimes had difficulty understanding people over the phone and had to sometimes ask people to repeat themselves. In fact, while the Veteran was noted to be retired in VA treatment records as of February 2015, by April 2017 VA treatment records documented that the Veteran had returned to work part time. The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The preponderance of the evidence is against a finding that the Veteran is unemployable due solely to his service-connected disabilities. The record ultimately reflects the Veteran is capable of physical and sedentary employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria. Regarding the Veteran’s education, training, skills, and work history, this information is unclear because the Veteran has not submitted the proper VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which the Veteran had been asked to complete on two, separate occasions in December 2015 and March 2016. Additionally, the Veteran was notified he had not provided the VA Form 21-8940 in an August 2020 supplemental statement of the case and a September 2020 deferred rating decision. Nonetheless, the Veteran has reported some work history in treatment records. April 2017 treatment records reported the Veteran had returned to work part time 19 hours per week as a deputy sheriff. In fact, at the December 2020 VA examination, the Veteran reported he still had a part-time job at that time. The preponderance of the evidence is against a finding that any skills the Veteran may have are eroded by a service-connected disability or service-connected disabilities. The Veteran’s starting of a new part-time job as of at least April 2017 and his continued part-time work through at least the December 2020 VA examination shows that the Veteran has the capacity for learning and training that would allow the Veteran to resume substantially gainful employment. As stated above, the preponderance of the evidence is against a finding that the Veteran is physically incapable of performing substantially gainful employment due to his service-connected disabilities. In the May 2012 VA Form 21-526, Veteran’s Application for Compensation and Pension, when asked what disabilities prevented him from working, the Veteran wrote, “Heart, breathing.” In other words, he did not attribute being prevented from working to the service-connected bilateral hearing loss and/or tinnitus, as it is reasonable to conclude that these disabilities do not affect his breathing. Instead, he attributed his inability to work to a non-service-connected disability. The evidence does not show that the service-connected disabilities have prevented the Veteran from performing part-time work as a deputy sheriff, and the preponderance of the evidence is against a finding that the Veteran would be prevented from performing that same work full time. Recent medical records predominantly show the Veteran to have a normal gait and full muscle strength. The Veteran reported doing some yard work at home in February 2016 and April 2017. Records showing that the Veteran has continued to hold part-time employment continue to support that the Veteran is not unemployable due to physical limitations. The Veteran reported working part time in April 2017, June 2017, August 2017, October 2017, January 2018, April 2018, and December 2020. The Veteran is able to live independently and manages his own self-care. The weight of the evidence is against a finding that the Veteran’s bilateral hearing loss and/or tinnitus cause physical limitations that would restrict the Veteran’s ability to perform substantially gainful employment. As to the Veteran’s mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran’s service-connected disabilities have not been shown to cause the Veteran communicative deficits beyond difficulty understanding people on the phone due to his hearing loss disability. Even when considering nonservice-connected disabilities, psychological examinations in the record reflect the Veteran to have routinely demonstrated normal findings including oriented to own ability, knowing his own limitations, appropriate mood and affect, intact judgment, fluent speech, and good insight. As the Veteran’s service-connected disabilities do not cause the Veteran mental limitations, the weight of the evidence is also against the Veteran being mentally incapable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his reported education, training, skills, and work history, the Board finds that the Veteran is capable of full-time work that would result in income at the level of substantially gainful employment. For example, the Veteran’s service-connected disabilities would not prevent the Veteran from pursuing his line of work as a deputy sheriff on a full-time basis. The fact that he has performed this job on a part-time basis for more than three years shows he has the skill set to perform the job. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment. In light of the foregoing, the Board finds the evidence to preponderate against a claim for a TDIU rating. As such, the benefit of the doubt doctrine is inapplicable, and the claim is denied. See Gilbert, 1 Vet. App. 49. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.