Citation Nr: 21024833 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-12 864 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1968 to February 1969. This case initially came to the Board of Veterans’ Appeals (Board) on appeal from a April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the evaluation of the Veteran’s service-connected bilateral hearing loss from 50 percent to 0 percent, effective July 2013. The Veteran had filed a claim for an increased rating for hearing loss received December 3, 2009. A reduction was proposed in March 2010. The Veteran disagreed with the RO’s reduction and timely appealed, filing a Notice of Disagreement in April 2013. In November 2018, the Board inferred the issue of entitlement to a TDIU as part and parcel of the Veteran’s claim for restoration of the 50 percent rating. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board remanded the issue of entitlement to a TDIU for further development. In October 2019, the RO issued a Supplemental Statement of the Case, denying entitlement to a TDIU. In a February 2020 decision, the Board denied entitlement to a TDIU. In response to that decision, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). In an October 2020 Joint Motion for Remand (JMR), both parties agreed that the Board’s February 2020 decision, denying entitlement to TDIU, should be vacated, as the Board erred by applying the incorrect legal standard when finding the Veteran was not entitled to a referral under 38 C.F.R. § 4.16 (b) for extraschedular consideration. Additionally, the parties also agreed that the Board failed to adequately analyze the Veteran’s educational and occupational history when evaluating the Veteran’s ability to transition to other occupations, given his service-connected disabilities. Accordingly, CAVC vacated the Board’s February 2020 denial, and remanded the matter to the Board for readjudication. Entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is currently in receipt of service connection for bilateral hearing loss and tinnitus. His combined disability rating was 60 percent from February 4, 2009 to July 1, 2013. As the Veteran's tinnitus and bilateral hearing loss are both organic diseases of the nervous system, Fountain v. McDonald, 27 Vet. App. 258 (2015), they may be considered diseases affecting a single body system and therefore considered as one disability. 38 C.F.R. § 4.16(a)(3). A single disability rated 60 percent would render the Veteran eligible for TDIU on a schedular basis. However, the Board will defer a decision on whether the Veteran meets the schedular standards under this provision until after the Director has rendered a decision as discussed below. However, in April 2013, the disability rating for the Veteran’s bilateral hearing loss was reduced from 50 percent to 0 percent, effective July 1, 2013. Therefore, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a), subsequent to July 1, 2013. While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, it must consider whether a remand for to VA’s Director of Compensation for such consideration is warranted. Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). As noted above, the parties to the JMR agreed that the Board’s February 2020 decision used the wrong legal standard in addressing whether remand for referral to the Director is appropriate. The Court has held that such referral is appropriate under 38 C.F.R. § 4.16(b) when there is “sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Board will therefore apply this standard. The Veteran has worked primarily in the auto industry and stated that his service-connected bilateral hearing loss and tinnitus have prevented him from “holding a job for the past 12 years.” The Veteran stated that he was advised by a doctor that he should not drive due to the severity of his hearing loss. In a September 2014 VA examination report, a VA examiner indicated that the Veteran’s hearing loss impacts his ordinary conditions of life, including his ability to work, and the Veteran should be disqualified from any occupations that require normal hearing sensitivity. A September 2020 statement by a private physician indicated that the Veteran can only understand language through lip-reading. The medical and lay evidence reflect that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected bilateral hearing loss and tinnitus disabilities. Therefore, a remand for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is warranted. 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: For any time period during which the Veteran does not meet the schedular standards for TDIU under 38 C.F.R. § 4.16(a), refer the case to the Director of the Compensation Service for consideration of the issue of entitlement to extraschedular TDIU based on the Veteran’s service-connected disabilities under 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.K. Donaldson, Associate 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.