Citation Nr: 21013616 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-12 973 DATE: March 10, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due exclusively to the service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1964 to November 1967 with subsequent service in the Army National Guard. This appeal to the Board of Veteran’s Appeals (Board) arose from a November 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See December 2011 Notice of Disagreement; March 2013 Statement of the Case (SOC); May 2013 Substantive Appeal (VA Form 9). In the March 2015 Board Decision, the Board determined that the claim for entitlement to a TDIU rating derived from the Veteran’s claim of entitlement to an increased rating for bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 477 (2009). The Board remanded the claim for further evidentiary development. In December 2017, the Board denied entitlement to a TDIU rating. The Veteran appealed the December 2017 Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), which vacated the decision and remanded it back to the Board for further development in May 2019. Thereafter, in January 2020, the Board again remanded the claim for a referral for consideration of a TDIU rating on an extraschedular basis. There has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During the pendency of the Veteran’s claim, which was raised in March 2015, service connection has been in effect for tinnitus, evaluated at 10 percent effective December 29, 2004; temporomandibular joint, evaluated at 10 percent effective March 15, 2011; bilateral hearing loss, evaluated at 0 percent effective December 29, 2004, 10 percent from November 12, 2013; and 30 percent from August 8, 2017; and non-displaced fracture, left mandible, evaluated at 0 percent effective November 20, 2009. The Veteran’s combined disability rating during the pendency of this claim is 30 percent effective November 12, 2013 through August 7, 2017 and 40 percent thereafter. Therefore, the Board finds that the Veteran’s service-connected disabilities do not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). Notwithstanding that the Veteran does not meet the schedular criteria for a TDIU, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Thus, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), as here, an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without first ensuring the claim was referred to VA’s Director of Compensation and Pension Service for consideration of an extra-schedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Board’s January 2020 decision remanded this claim for referral to the Director for consideration of an extraschedular TDIU. To the extent the referral for an extraschedular TDIU by the Board in its remand was an initial finding, a remand by the Board is a preliminary order and does not constitute a final decision of the Board. Thus, the Board’s findings in the January 2020 remand are not binding on the matter of entitlement to an extraschedular TDIU. 38 C.F.R. § 20.1100 (b); cf Oct. 2017 Vet. App. Mem. Dec., No. 16-2137, at 5 (indicating the Board implicitly determined that the Veteran’s disability picture sufficiently required referral for extraschedular consideration). Regardless, the Board may now review the Director’s determination that entitlement to a TDIU on an extraschedular basis was not warranted and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, after reviewing the evidence and prior medical examinations of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is or has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. A January 2010 VA oral examination reflects that the Veteran’s left mandible disability was productive of no functional loss or impairment. At a May 2011 VA examination, the examiner noted that the Veteran’s hearing loss caused significant effects on the Veteran’s occupation. The Veteran reported difficulty hearing in his daily life and understanding speech in background noise. It was also noted that the Veteran’s tinnitus distracted him constantly. The Veteran’s left mandible was also evaluated, and was noted to not have any significant effects on his occupation or daily activities. In a January 2012 private medical record, the Veteran reported clicking in his jaw, but it was noted that it did not cause any significant alteration in activity level. In the July 2014 Board Hearing, the Veteran testified that he failed the Department of Transportation physical exam for driving truck, specifically the verbal examination, due to his hearing loss. The Veteran stated that when he was driving, he had troubles hearing and communicating on the radio due to his hearing loss. At the September 2017 VA hearing loss examination, the examiner noted that the Veteran had difficulty hearing in all situations, especially with background noise. The examiner noted that the Veteran was fit for hearing aids in 2015. On the April 2015 VA Form 21-8940, the Veteran reported that his last employment was at Blue Water Sorting and Packaging as a truck driver from January 2005 to December 2007. The Veteran indicated that he left his employment due to his hearing loss. The Veteran’s representative asserted the same in the October 2018 Appellant’s Brief before the Court. In this regard, an October 2007 Commercial Driver Fitness Evaluation is of record. The Veteran stated that a CDL requires forced whispered voice in the better ear at not less than five feet, with or without the use of hearing aids. The Veteran asserted that his score was 0 feet in both ears. However, the Board notes that this is not an accurate representation of the CDL examination. It is specified on the 2007 CDL fitness evaluation that the Veteran could, in the alternative to the forced whisper test, pass the hearing portion of the evaluation if the average hearing loss in his better ear was under 40 decibels – and as measured at the time – it was. The Veteran was deemed to meet the standards for commercial driver fitness. Furthermore, the Veteran’s mouth and throat were also examined, and no deformities likely to interfere with breathing or swallowing were noted. Nevertheless, the Veteran was advised that periodic monitoring was required for his hypertension – which is not a service-connected disability. In terms of education, the Veteran completed three years of high school. The Veteran noted he had no education or training before and since becoming too disabled to work in his formal application for a TDIU. Pursuant to January 2020 Board remand instructions, an advisory opinion from the Director, Compensation Service, regarding entitlement to a TDIU on an extraschedular basis. Based on review of the record, the Director determined that the evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented the Veteran from gainful employment. In Doucette v. Shulkin, No. 15-2818 (March 6, 2017), the Court held that the ratings criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, including in an everyday work environment, as these are precisely the effects that VA’s audiometric test are designed to measure. See Doucette. The Court further held that when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. Id. Specifically, the Court discussed how VA’s rating criteria for hearing loss provides for evaluating hearing loss based on a combination of puretone averages and speech discrimination, measuring a Veteran’s ability to hear sound at specific frequencies and volumes and to identify spoken words, respectively. Id. The Court also noted that the 1994 amendments to 38 C.F.R. § 4.85 expressly recognizes exceptional patterns of hearing impairment, such that VA can fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting, such as every day work environments and in the presence of environmental noise, which often cannot be overcome by the use of hearing aids. Id. Here, the Board finds that the evidence in this case does not present such an exceptional or unusual disability picture so as to render the regular schedular standards impractical. The Veteran is competent to report his hearing loss symptoms and observations, and the Board finds that such reports are credible. The Veteran has also submitted statements from family members, including his spouse and brother attesting to their observations of the Veteran with regard to his hearing loss, and the Board finds that such reports are credible. For the entire appeal period, the evidence shows that the Veteran has difficulty having conversations with people in different contexts, to include in contexts with environmental noise, and that the Veteran has difficulty understanding communications and identifying spoken words in different contexts. See May 2011 and September 2017 VA examinations. On review, after comparison of the Veteran’s disability picture with the schedular rating criteria’s contemplated symptoms, severity thereof, and functional impairments therefrom, the Board finds that the Veteran’s level of severity and symptomatology of his service-connected hearing loss disability are contemplated by the established criteria found in the rating schedule for a hearing loss disability. Accordingly, the Board finds that the evidence does not present such an exceptional or unusual disability picture that the available schedular evaluations for the service-connected hearing loss disability are inadequate. The Board further notes that the Veteran has at no time during the period under consideration indicated that he believes that the schedular criteria for his disabilities, including tinnitus, hearing loss, TMJ disability, when considered together, do not adequately describe or reflect his symptomatology. Further, the Veteran has at no point during the current appeal indicated that his service-connected bilateral hearing loss results in further disability or symptoms that have not been attributed to a specific service-connected condition, to a condition that has been referred to the AOJ for consideration, or to a condition that has been remanded to the AOJ for issuance of a statement of the case, when looked at in combination with his bilateral hearing loss. Finally, the Board notes that the Veteran noted he retired from his job as a truck driver, and has not sought to obtain employment nor has he sought any education or training since he claims he became too disabled to work. The Veteran has not identified any specific outstanding records that indicate he is unable drive or work in an occupation that does not require a CDL, and would still comport with his occupational training and background. Furthermore, the Veteran has not asserted, nor is it shown in any objective medical evidence of record that his TMJ or tinnitus disabilities preclude him from any type of employment, or render his disability picture so exceptional that the rating criteria do not adequately compensate for them. In fact, the VA examinations of record specifically note that there is no functional impact associated with the Veteran’s TMJ and tinnitus disabilities. The Board acknowledges the argument set forth by the Veteran’s representative in the October 2018 Appellant’s Brief to the Court, that the Veteran’s hearing disability precludes him from working in any capacity as a driver, as his inability to hear renders the performance of such work too hazardous. However, evaluations of bilateral hearing loss range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests. In this case, the mechanical application of the Veteran’s audiometric results to the rating criteria did not warrant a rating higher than 30 percent out of a possible 100. Furthermore, neither in VA medical records nor in VA examinations did the Veteran report or identify any symptoms other than difficulty hearing, related to his disability. See 2017 VA examination. For these reasons, the Veteran’s disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are therefore adequate. Consequently, an extraschedular rating is not warranted under 38 C.F.R. § 3.321 (b)(1). The Board acknowledges the Veteran’s representative’s contention that “his current hearing loss creates a safety hazard and will affect performance, that he needs to be able to hear car horns and sirens; he needs to be able to hear customers who receive deliveries or passengers who need a ride; and he needs to be able to hear instructions and directions from his employer.” See October 2018 Appellant Brief. In this regard, the Board notes that even if CDL drivers do not meet the medical standards set forth by the U.S. Department of Transportation, there are exemptions that may be applicable for the deaf or hard of hearing. See 49 U.S.C. § 31315(b). Furthermore, there is no indication that this hard of hearing Veteran is unable, due to his service-connected disabilities, to obtain employment as a driver, either of rideshare service, delivery driver or other employment requiring similar knowledge or ability. Additionally, the Board finds the suggestion that the Veteran’s education and professional experience as a truck driver limits the Veteran’s abilities to that of being a driver is both inaccurate and unfair to the Veteran. A driver with the Veteran’s knowledge and experience has undoubtedly acquired knowledge which are portable to employment other than driving. Accordingly, as the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply. Therefore, entitlement to a TDIU on an extraschedular basis is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jennifer White 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.