Citation Nr: 21021514 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 955 DATE: April 13, 2021 ORDER Entitlement to a total rating based upon individual unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) is denied. REMANDED Entitlement to higher ratings for bilateral hearing loss, currently rated as noncompensable prior to October 14, 2020 and 10 percent thereafter, on an extraschedular basis is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and assigned an initial noncompensable rating. In November 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the local RO. The hearing transcript is of record. In September 2018, the Board denied entitlement to a compensable initial rating for service-connected bilateral hearing loss on a schedular basis. It remanded entitlement to a compensable initial rating for service-connected bilateral hearing loss on an extraschedular basis and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In November 2020, the VA Director of Compensation Service (Director) Director issued an Advisory Opinion recommending denial of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In November 2020, the RO issued a rating decision granting a 10 percent rating for service-connected bilateral hearing loss effective October 14, 2020. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The issue adjudicated in the instant decision, entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), is also subject to compliance with the September 2018 Board remand. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified any specific notification or assistance error for this claim and none has been identified by the Board. The September 2018 Board remand directed the agency of original jurisdiction (AOJ) to refer entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) to the Director for consideration of an extraschedular TDIU rating. For development, the AOJ sent the Veteran a July 2020 letter requesting that he complete the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU claim). He did not return the requested TDIU claim form. The Director issued a November 2020 Advisory Opinion. The AOJ readjudicated this issue in a November 2020 supplemental statement of the case (SSOC). The Board finds that this development is in substantial compliance with the September 2018 remand. The instant decision does not take a position on whether hearing loss causes marked interference with employment. Cf. Brambley v. Principi, 17 Vet. App. 20, 24 (2003) (it is “premature for the Board to decline extraschedular consideration where the record was [ ] incomplete” on an issue relevant to the extraschedular determination, such as occupational impairment). The issues of TDIU and extraschedular consideration are not necessarily inextricably intertwined because they contain different standards regarding employment and employability. Kellar v. Brown, 6 Vet. App. 157, 162 (1994); see Stanton v. Brown, 5 Vet. App. 563, 564–70 (1993) (issue of extraschedular rating under § 3.321(b)(1) is separate from that of a total disability rating based on individual unemployability). For the above state reasons, the Board finds that appellate adjudication for this issue may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for bilateral hearing loss and tinnitus. From November 18, 2014, the Veteran had a 10 percent rating for tinnitus and noncompensable rating for bilateral hearing loss prior to October 14, 2020 and 10 percent thereafter. He has a combined 10 percent rating from November 18, 2014 and 20 percent rating from October 14, 2020. Thus, the Veteran has not met the percentage requirements under 38 C.F.R. § 4.16(a) at any time. When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). In November 2020, the Director issued an advisory opinion regarding extraschedular consideration for TDIU under 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, the Board 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); 38 C.F.R. § 4.16(b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) has already been remanded and referred to the Director. Therefore, the extraschedular TDIU issue is now before the Board and can be addressed on the merits. 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). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having 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 following: 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. The Veteran’s DD 214 reflects that he had obtained a high school diploma. August 2014 private audiogram showed high frequency bilateral hearing loss and NU-6 Word Recognition testing that appears to be 92 percent for the right ear and 84 percent for the left hearing. In June 2015, the Veteran had a VA-contract audiology examination with an audiologist. An audiogram showed average pure tone thresholds of 54 decibels in the right ear and 56 decibels in the left ear. Maryland CNC word list speech discrimination was 94 percent for the right ear and 98 percent for the left ear. The audiologist diagnosed bilateral sensorineural hearing loss. Functional impact for hearing loss was reported as difficulties understanding speech and often speaking loudly without hearing aids. For the functional impact for tinnitus was constant high pitch ringing. The Veteran reported that he had “learned to deal with it over the years.” In his April 2016 substantive appeal, the Veteran asserted that he was practically deaf and indicated his hearing impairment was not accurately depicted on the audiological examination report. In November 2016, the Veteran had a Board hearing. He reported that his hearing loss had a significant impact on his daily life. He frequently requested others to repeat themselves. He had problems hearing certain sounds. He provided an example of where he did not hear an electronic buzzing noise that was so loud that it hurt his wife's ears. When he was working, he had difficulty passing his annual hearing test. He eventually bought his own hearing aids in 2011. However, they wore out and he started seeking treatment at VA. He had to take off work to make the appointment. He was confused by the Maryland CNC test and believed it was inaccurate. He reported that he recently retired since he had difficulty passing the occupational physical examination due to hearing loss and breathing difficulties. He had taken multiple physical examinations to maintain his commercial driver's license. In November 2020, the Veteran had a VA-contract audiology examination with an audiologist. An audiogram showed average pure tone thresholds of 65 decibels in the right ear and 66 decibels in the left ear. Maryland CNC word list speech discrimination was 84 percent for both ears. The audiologist continued the bilateral sensorineural hearing loss diagnosis. For functional impact, the Veteran cited his wife’s reports that he was unable to hear anything and his perception of muffled sounds. For affected work activities, the audiologist noted that the Veteran was retired. She additionally reported that the Veteran had difficulty hearing in noisy backgrounds, with groups, and at a distance. The Veteran was able to hear but not clearly. For tinnitus, he described it as constant, high pitch sounds affecting both ears equally. He added that it was severely bothersome. He stated that he could not hear over it and that it sometimes caused him to wake up at night. For the following reasons, the Veteran's service-connected disabilities are not so severe that it results in an inability to secure or follow substantially gainful employment, considering his educational and occupational history. The Veteran declined to file a formal TDIU claim. The Board has pieced together his educational and employment history from the available reports. As to the Veteran's level of education, special training, and previous work experience, the testimony from the November 2016 hearing indicates that the Veteran had commercial driving license and specialized hazardous material transportation license. His educational attainment is at least a high school diploma. It appears the Veteran worked for many years as a commercial driver and retired sometime shortly before or during the claims period, which started in November 2014. Specifically, the Veteran reported that hearing loss was one among other problems that led to his retirement. Although the exact circumstances of his retirement are not entirely clear, he reported difficulty passing a physical examination for maintaining a commercial driver’s license. He references hearing impairment as one among other problems that caused him to be unable to complete the physical examination. The June 2015 and November 2020 VA-contract examinations reports have been considered. The functional impairment descriptions from these VA-contract examinations do not specifically address occupational impact but general impairment and encompass hearing difficulty with daily activities due to service-connected bilateral hearing loss and tinnitus. Neither VA-contract audiologist provided any report suggestive of total occupational impairment due to hearing loss and tinnitus. While the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner," Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), a VA examiner's opinion as to the functional impairment cause by a disability is evidence that is relevant to the Board's ultimate determination. The Veteran is competent to report the functional impacts of his hearing impairments and the extent to which these disabilities impacted his ability to work, as the question of whether a Veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Id. at 1354. However, he does not provide any specific report asserting that he is unable to work due to service-connected hearing loss and tinnitus. His reference to hearing impairment as one reason he could not pass routine physical examinations to maintain his commercial driver’s license appears is limited. He does not provide any additional information about the circumstance of his retirement or submit the occupational physical examination in question. The record does not include any information about the hearing requirements to maintain a commercial driver’s license and available hearing impairment accommodations. Again, he was invited to submit a formal TDIU application in July 2020 but declined to do so. In sum, the evidence does not show that the service-connected hearing loss and tinnitus disabilities pose physical and mental impairment to substantiate a reasonable possibility that the Veteran is unable to perform the type of activities required by his usual occupation as a commercial driver or similar occupation for which he is qualified through his education and work history by reason of these service-connected disabilities. It is the Veteran's responsibility under 38 U.S.C. § 5107(a) to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not met this burden here. For the reasons set forth above, the preponderance of the evidence does not demonstrate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. The benefit of the doubt doctrine is not for application in this regard and entitlement to TDIU on an extraschedular basis is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.340, 4.16(b). REASONS FOR REMAND Entitlement to an initial compensable rating for bilateral hearing loss on an extraschedular basis is remanded. The AOJ has not readjudicated this issue. In May 2020, the Director issued an advisory opinion concerning extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for service-connected bilateral hearing loss. However, the November 2020 SSOC did not address this issue, and the record does not include any other report suggesting this issue has been readjudicated. This matter is REMANDED for the following action: Issue a supplemental statement of the case for entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for service-connected bilateral hearing loss. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.