Citation Nr: 21022003 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 09-21 195 DATE: April 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 14, 2020, is denied. FINDINGS OF FACT 1. Prior to February 14, 2020, the combined schedular rating for multiple service-connected disabilities was 60 percent. 2. Prior to February 14, 2020, the combined service-connected disabilities did not render the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to February 14, 2020, the criteria for entitlement to TDIU were not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from November 1966 to October 1968. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2012, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. The Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In November 2012, the Board remanded this appeal to obtain outstanding clinical records. At that time, the Board also denied an increased disability rating for hearing loss. The Board’s decision with respect to that claim is final. See 38 C.F.R. § 20.1100. Upon return of the appeal to the Board, in an August 2018 decision, the Board denied TDIU. The Veteran appealed that decision to the Veterans Court. In a May 2019 Order, pursuant to an April 2019 Joint Motion for Remand, the Veterans Court vacated the Board’s August 2018 decision and remanded this claim back to the Board for development consistent with the Joint Motion. In December 2019, the Board remanded the claim for referral of the matter of entitlement to TDIU on an extraschedular basis, as the combined disability rating was only 60 percent for multiple service-connected disabilities. An extraschedular rating was denied on remand. However, upon granting service connection for additional disabilities, in November 2020, the Agency of Original Jurisdiction (AOJ) granted TDIU, effective February 14, 2020. Despite the grant of TDIU, the period prior to the effective date remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (once the issue of TDIU has been raised in an initial rating or increased rating claim, the Board has jurisdiction over the TDIU issue for the entire appeal period of the underlying disability rating). The appeal has since been returned to the Board for further appellate action. TDIU Entitlement—Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate 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(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For the period prior to February 14, 2020, the service-connected disabilities include (1) a mental disability, rated at 50 percent since August 3, 2010, and nonservice-connected prior to that date; (2) tinnitus, rated at 10 percent for the entire period; and (3) bilateral hearing loss, rated at 10 percent since April 27, 2009, and 0 percent prior to April 27, 2009. The combined disability rating is 60 percent since August 3, 2010, and 20 percent prior to August 3, 2010. Neither of these combined ratings satisfies the schedular criteria for TDIU based on multiple service-connected disabilities. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board observes that while entitlement to an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1), and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), are similar, they are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). A TDIU on an extraschedular basis merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96. Entitlement to a TDIU an extraschedular basis requires that the Veteran show that service connected disability or disabilities precludes substantially gainful employment; whether the veteran can work in his or her preferred or current position is not the standard. Moreover, VA may find that a veteran is physically capable of substantially gainful employment even if he or she is not currently engaged in such employment. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Veterans Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to TDIU prior to February 14, 2020. On the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the Veteran reported that he last worked full time in May 2004; that he became too disabled to work in October 2004; and, that he had work experience as a laborer and car hauler (Record 08/28/2014). Social Security Administration (SSA) records show that the Veteran had job experience as a construction materials technician. He ran equipment, including drill rigs, bobcats, and backhoes. He also worked as a car hauler, hauling new cars to dealers (Record 02/14/2017 at 23). He had a high school education. Significant conditions contributing to physical impairment included chronic right shoulder pain (nonservice-connected), and status-post biceps tendon rupture and tenotomy (nonservice-connected). No hearing or speaking limitations were established (Record 02/14/2014 at 47). Psychiatric/mental limitations included mild restriction of activities of daily living and mild difficulties in maintaining social functioning. The examiner noted that the Veteran was making no psychiatric allegations, and was reporting no mental health treatment, but that he was prescribed an antidepressant medication for “unknown reasons, may be related to pain” as treatment for an arm injury. There were no problems with understanding, concentration, coherency, or communication. “Third party data” indicated no limitations to social functioning, attention, concentration, or following instructions. He could leave the house independently, drive, shop, and pay bills. His primary limitations appeared to be physical, and sleep limited by pain. A self-report of activities of daily living was generally consistent with these findings, but the Veteran reported attention and concentration difficulties, which he alleged were related to his medications. The conclusion was that the Veteran was not significantly functionally limited by psychiatric issues (Record 02/14/2014 at 63). A February 2008 VA Audiological Examination reveals a diagnosis of bilateral hearing loss and tinnitus. Symptoms included difficulty hearing the telephone and television. Speech recognition was 96 percent in the right ear and 72 percent in the left ear (Record 02/27/2008). Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 35 30 31 LEFT 50 70 65 70 64 An April 2009 VA Audiological Examination reveals a diagnosis of bilateral hearing loss and tinnitus. Symptoms included having to pay attention to his surroundings and situate himself for the best hearing condition. The effect of the condition on the claimant's usual occupation is significant in that he cannot understand speech well in difficult listening situations. Speech recognition was 92 percent in the right ear and 20 percent in the left ear (Record 04/28/2009). Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 50 45 43 LEFT 50 85 85 90 78 The report of a March 2011 VA Mental Disorders Examination reveals the Veteran’s complaint of symptoms of nightmares, flashbacks, nervousness, hypervigilance, hyperarousal, violent angry outbursts, and irritability. The severity of the symptoms was moderate, continuous, and ongoing. The Veteran indicated that the symptoms affected his total daily functioning, resulting in marital strain, isolation from others, and his not wanting to engage in activities. He reported trouble sleeping. He described a history of violent behavior, including domestic violence and fights with strangers. He did not indicate a history of suicide attempts. The Veteran reported depression and low self-esteem. The severity of these symptoms was assessed as moderate. The Veteran reported that he was retired and was 100 percent disabled; but specified that this was due to rotator cuff injury. He reported that his unemployment was not primarily due to the effects of his mental condition. On examination, orientation was within normal limits; appearance and hygiene were appropriate; behavior was appropriate; affect and mood were normal; communication and speech were within normal limits. The Veteran maintained good eye contact during the examination, but showed impaired attention and/or focus. He reported that he was unable to focus on reading. There were signs of suspiciousness; however, panic attacks were absent. At the time of examination, there were no delusions or hallucinations observed; and, there were no reports of a history of delusions or hallucinations. Obsessive compulsive behavior was absent. Thought processes were appropriate. The Veteran was able to understand directions. He did not have slowness of thought, nor did he appear confused. His judgment was not impaired. Abstract thinking was normal. Memory was impaired, and the degree was assessed as mild—he forgets names, directions, and recent events. He denied any intent or plan to harm himself. Homicidal ideation was also absent (Record 03/18/2011). A May 31, 2012, VA ENT Consult reveals diagnoses of hearing loss and tinnitus. Sound was perceived to be loudest in the right ear. Word recognition testing was not noted as compliant with Maryland CNC. Pure tone thresholds were not recorded (Record 05/31/2012). The report of an August 2014 VA Mental Disorders Examination reveals the Veteran was living with his son and daughter-in-law since his second marriage dissolved. The Veteran reported that he retired because he was unable to keep his job after a severe arm injury. The Veteran described a relatively active life. He was going out to dinner more than once a week, and was getting together with his family members. He had a girlfriend. The Veteran reported regular phone contact with several of his siblings. Symptoms included depressed mood, anxiety, and chronic sleep impairment. There were no hallucinations reported. On examination, the Veteran was casually dressed and hygiene was good; speech was of normal rate and rhythm; the Veteran was oriented to person, place, and time; affect was full range; thought content and progression were logical and goal-directed; there were no obsessive-compulsive behaviors; and, attention and concentration were within normal limits. The Veteran reported no panic attacks; he described frequent thoughts about suicide, but he denied intent to ever follow through on these ideas. There was no homicidal ideation or history of violent behaviors. Impulse control was good. The Veteran denied engaging in any reckless/impulsive behaviors (i.e., impulsive violence, reckless driving, extravagant spending, excessive gambling, and impulsive sex) (Record 08/27/2014). An August 2014 VA Audiology Examination reveals speech discrimination scores of 92 percent in the right ear and 26 percent in the left ear. The Veteran reported problems hearing if he does not have a hearing aid in the right ear (Record 08/28/2014). Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 40 60 60 51 LEFT 60 70 90 90 78 A June 11, 2015, VA Audiology Consult reveals mild sloping to moderately severe sensorineural hearing loss in the right ear, and mild sloping to moderately severe hearing loss in the left ear, with severe to profound hearing loss in the left ear above 2000 Hertz (Record 11/04/2020 at 1008). A December 2015 psychiatric opinion on employability states that the Veteran is considered fully capable of managing funds for his own best interest. In relationship to usual occupational and daily activities, the Veteran’s ability to understand and follow instructions was considered not impaired. His ability to retain instructions, as well as sustain concentration to perform simple tasks, was considered not impaired. His ability to sustain concentration to task persistence and pace was considered not impaired. His ability to respond appropriately to coworkers, supervisors, or the general public, was considered not impaired. His ability to respond appropriately to changes in the work setting was considered not impaired. The examiner opined that none of the issues raised by the Veteran as preventing work were psychiatric issues (Record 12/11/2015). A December 2015 audiology opinion on employability states that the Veteran’s tinnitus would not have a functional impact on his work environment. His hearing loss would affect his ability to communicate in an environment with noise, and would require visual, possibly written communication. He would experience difficulty communicating on a telephone and would likely require an assistive device to help with that situation (Record 12/14/2015). A VA examination in January 2020 reveals a diagnosis of bilateral hearing loss and tinnitus (Record 01/30/2020). Pure tone thresholds were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 55 75 55 55 LEFT 80 85 95 95 89 Speech recognition was 96 percent in the right ear and 20 percent in the left ear. The Veteran stated that he must wear a hearing aid in order to understand conversations. Tinnitus is a constant annoyance and ringing in the ears makes it difficult to hear. A January 2020 VA Mental Health Examination reveals that the Veteran was very cooperative and verbal. He was open and pleasant during the interview. He was considered a reliable informant. He was concerned about “forgiveness” for the killing he did in Vietnam as a soldier. The examiner had to repeat some questions in that there were signs of hearing loss in the Veteran. He was oriented in all spheres. The Veteran remains close with his brother. They keep in touch by phone and by Facebook between visits. The Veteran has a lot of friends, some of whom have passed away. Others are still living. The Veteran has been married three times. He keeps in touch with his two daughters, as often as every other day. He also raised a stepson whom he raised from his second marriage, and his stepson checks in on him all the time. His stepson is very close to the Veteran. He reports he is happy in his current marriage, and that his wife is a good woman. The Veteran identified his symptoms as depression, evidenced by being “very emotional,” such as crying when he visits “the Wall” in Washington DC. The Veteran reported that he does “pretty well” with sleep as long as he takes sleep medication. The Veteran reported “back flashes” from Vietnam. He sees a psychiatrist at VAMC. He reported suicidal thoughts, but he would not follow through with suicide because of his faith. He had no homicidal ideation. There is no history of aggressive behavior. There is no history of inpatient mental health treatment. He endorsed involuntary and intrusive thoughts and avoidance of reminders of his stressors. He endorsed a negative emotional state, guilt, problems with concentration. Symptoms included a depressed/anxious mood and chronic sleep impairment. The examiner opined that the Veteran’s symptoms were productive of occupational and social impairment with reduced reliability and productivity (Record 01/30/2020). VA outpatient records can be summarized as showing symptoms including depressed mood, anxiety, flashbacks, social withdrawal, suspiciousness, and discomfort in crowds, decrease in interest in activities, irritability, restricted affect, sleep disturbance and nightmares. However, the Veteran was consistently alert and oriented; speech and communication were consistently normal and appropriate; appearance and behavior were consistently appropriate; thought process were consistently normal; insight and judgment were generally good; memory was generally intact; and there were generally no suicidal or aggressive thoughts. While findings were mostly normal for delusions and hallucinations, the Veteran reported an occasional sighting of a Vietnamese solider. In December 2019, the Board remanded this issue for consideration of TDIU on an extraschedular basis. In October 2020, the Director of VA’s Compensation Service issued an advisory opinion denying an extraschedular TDIU. The basis for this denial was that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to February 14, 2020 (Record 10/22/2020). After a review of the record in conjunction with the applicable laws and regulations, the Board finds that the evidence does not substantiate entitlement to TDIU on an extraschedular basis prior to February 14, 2020. The current effective date for the grant of TDIU is based fundamentally on the grant of service connection for a significant heart disability, status-post myocardial infarction, as well as significant residuals, to include atrial fibrillation and painful scars. These combine to a rating of 70 percent by themselves. None of these current disabilities were service-connected prior to February 14, 2020. Thus, the current effective date for the grant of TDIU is not arbitrary, but reflects the fact that significant additional disability became service-connected on that date. Prior to February 14, 2020, the service-connected psychiatric disability, hearing loss, and tinnitus, caused occupational impairment, see Van Hoose, 4 Vet. App. at 363 (disability rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment). However, these disabilities did not prevent the Veteran from obtaining or retaining a substantially gainful occupation consistent with his job training and experience, without consideration of significant nonservice-connected disabilities. Regarding mental disability, the Board notes that important functional areas such as thinking, judgment, orientation, alertness, and speech, appear to have been largely intact during this period. The Board acknowledges that the Veteran has experienced suicidal ideation; however, there is no indication how this symptomatology impacts occupational function. Despite these reports, concurrent examination of the Veteran have shown him to have good impulse control (August 2014), to display no more than “moderate” depression (March 2011), and to meet the criteria for no more than a 50 percent disability rating (January 2020). Thus, to the extent that the Veteran has had suicidal thoughts, the effect on his occupational impairment does not appear to be more disabling than is reflected by his rating of 50 percent. Van Hoose, 4 Vet. App. at 363. The criteria for a rating of 50 percent for service-connected mental disabilities do not suggest that an individual rated at that level would be unable to secure or follow a substantially gainful occupation. The Board finds that the evidence does not otherwise substantiate such impairment prior to February 14, 2020. While the Board acknowledges the December 2015 audiology opinion – which finds a potential job impact from his hearing loss – the Board also must acknowledge that the Veteran’s hearing loss is rated at only 10 percent disabling through most the appeal period; it is rated at 0 percent prior to April 27, 2009. Tinnitus is also assigned a rating of 10 percent. This must be considered to be a reflection on the severity of the disability, including its occupational effects. The Veteran has not described how these disabilities affect his employment as a car hauler and laborer in ways that could not be alleviated by reasonable accomodation. As noted in the August 2014 report, it was thought the Veteran would have problems hearing, but only if he did not wear a hearing aid in his right ear. In December 2015, it was noted that an assistive device would be required for telephone conversations. These notations indicate that, while the Veteran would be expected to face challenges due to his hearing loss and tinnitus, these could be overcome with reasonably available assistive devices. The Board has considered the Veteran’s Social Security Administration (SSA) disability records. These reflect that he was awarded SSA disability based on fractures of the upper limb and deafness. The Board notes that fractures of the upper limb are not service-connected disabilities. While hearing loss is a service-connected disability, and “deafness” was noted on the SSA summary, the Veteran is clearly not deaf, but retains auditory acuity at an impaired level, right worse than left. Also notable, the SSA determination does not list any significant mental disorder as an occupational impairment. In sum, the Board finds that the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met prior to February 14, 2020; and, the evidence does not otherwise indicate that the service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. Accordingly, the appeal must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.