Citation Nr: 21015884 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-14 906 DATE: March 18, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure and follow a substantial gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have 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 in the United States Army from November 1975 to November 1979. In October 2020 the Board of Veterans’ Appeal (Board) denied the Veteran’s claim of service connection for an acquired psychiatric disorder and Remanded his TDIU claim. The TDIU Claim The Veteran claims, in substance, that his service-connected disabilities have prevented him from working in any occupation since approximately 2001. In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. 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). It is imperative for the Veteran to understand that 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 sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   i. 38 C.F.R. § 4.16(a) The Veteran is service-connected for the following disabilities: • Bilateral hearing loss rated as 40 percent disabling; • A back disability rated as 20 percent disabling; and • Tinnitus rated as 10 percent disabling from April 17, 2003. Given the above ratings, the Board finds that the Veteran does not have two or more service-connected disabilities with one disability rated at 40 percent or higher with his combined rating being 70 percent or higher because, while he has one disability rated as 40 percent disabling, he has a combined rating of 60 percent. Therefore, the Board finds that the criteria for a TDIU under 38 C.F.R. § 4.16(a) have not been met. ii. 38 C.F.R. § 4.16(b) The next question for the Board to consider is 38 C.F.R. § 4.16(b). In this regard, in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. Tellingly, in October 2020 the Board remanded the question of an extraschedular rating so that the Under Secretary for Benefits or the Director, Compensation Services could consider the claim. Thereafter, in December 2020 the Director, Compensation Services denied the claim. Therefore, the Board finds that it can consider on the merits the claim for an award of TDIU under 38 C.F.R. § 4.16(b). With the above laws and regulations in mind, the Board notes that in his May 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form), the Veteran reported that he had not worked full-time and became too disabled to work because of his service-connected disabilities in September 2001. As to his work history, the Veteran reported that he was a mechanic for an oil company from 1995 to 2000. As to his education, the Veteran reported that he had 3-years of high school and it only other education or training was a diesel mechanic certification that he earned in 1994. Initially, the Board notes that the record also contains documents from the Social Security Administration (SSA) reporting that the Veteran became to disabled to work in June 2002. Moreover, while SSA findings are not binding on VA, the Board nonetheless finds that SSA disability award when combined with the information found in the Veteran’s treatment records and the appellant’s competent lay claims combine to support his claim that he had not work since approximately 2001/2002. See Owens, supra. Accordingly, the next question for the Board to consider is whether the adverse symptomatology caused by the Veteran’s service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). In this regard, given the 40 percent rating assigned for his service-connected bilateral hearing loss when combined with the additional problems caused by his tinnitus, the Board finds that the Veteran would not be able to protect himself from the normal dangers of a workplace performing non-sedentary employment because he could not hear what was going on around him. The Board also finds that the Veteran’s bilateral hearing loss and tinnitus would cause a danger to his co-workers in workplace performing non-sedentary employment. Therefore, the Board finds that the service-connected bilateral hearing loss and tinnitus would prevent the Veteran from following a substantial gainful occupation in most non-sedentary employments, including his past occupation as a diesel mechanic, because they would be too dangerous for him and for his co-workers. See Owens, supra. Likewise, the Board finds that his service-connected back disability would adversely impact his ability to secure and follow a substantial gainful occupation in most non-sedentary employments, including his past occupation as a diesel mechanic, because it would prevent him from carryout the physical requirements of the employment. In this regard the Board notes that, while the September 2017 VA examiner noted no functional impairment, the July 2014 VA examiner opined that his back disability would cause “limited bending and twisting of the thoracolumbar spine[and l]imit lifting to 50 lbs. occasionally and 25 lbs. frequently throughout the work-day.” See Owens, supra. As to the Veteran being able to secure and follow a substantial gainful occupation for the first time in a sedentary employment, the Board finds that his service-connected bilateral hearing loss and tinnitus would cause significant problems effectively participating in vocational training as well as to thereafter interacting with his co-workers and customers in the work place. Id. The Board also finds that the problems his service-connected back disability would cause sitting for prolonged periods of time would also interfere with the Veteran being able to secure and follow a substantially gainful occupation for the first time in a sedentary employment. Id. Therefore, the Board finds that the above problems caused by the Veteran’s service-connected bilateral hearing loss, tinnitus, and back disability when combined with his education (i.e., 3-years of high school) and work experience (i.e., mechanic) would prevent him from being able to secure and follow a substantially gainful occupation in a sedentary employment notwithstanding the July 2014 VA examiner’s opinion that his back disability did not prevent sedentary work duties. Id. Given the above record, the Board finds that with affording the Veteran the benefit of the doubt that the record shows that his service-connected disabilities (i.e., bilateral hearing loss rated as 40 percent disabling, a back disability rated as 20 percent disabling, and tinnitus rated as 10 percent disabling) are not adequately compensated for by the rating criteria because the occupational impairment caused by them precludes securing and following a substantially gainful occupation given his prior vocational history (i.e., diesel mechanic certification), work experience (i.e., mechanic), and education (i.e., 3 years of high school). See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.1, 4.16(b); Gilbert, supra. Accordingly, the Board finds that the criteria for an extraschedular TDIU have been met and the claim is granted. See 38 C.F.R. § 4.16(b). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the extraschedular TDIU because this issue is not before us. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.