Citation Nr: 21024927 Decision Date: 04/27/21 Archive Date: 04/26/21 DOCKET NO. 16-28 973 DATE: April 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1969 to December 1972. 2. The Veteran’s service-connected disabilities of hearing loss and tinnitus do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2018, the Board remanded this issue for additional development. It has now been returned for further appellate action. Turning to the relevant laws 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). 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 (1993). The Veteran has repeatedly claimed that he is unemployable due to diabetes mellitus, loss of his right leg, and peripheral neuropathy. Medical records from the Social Security Administration (SSA) corroborate these findings with an additional mental health condition contributing to unemployability. Importantly, he has not been granted service connection for any of these disorders, and they were denied in a November 2018 rating decision. The Veteran’s main contention is that TDIU was denied prematurely because he had claims pending; however, the Board denied the appeals in a November 2018 decision and there are no other claims pending at this time. In this regard, the Veteran is currently service connected for bilateral hearing loss, rated at 10 percent and tinnitus rated at 10 percent disabling. Therefore, he does not meet the requirements for TDIU on a schedular basis. 38 C.F.R. § 4.16 (a). When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b). However, the evidence does not support that his disability picture was so exceptional that the case should be submitted to the Director for extraschedular consideration. Specifically, the record did not demonstrate frequent hospitalizations or missed time from work on account of either service-connected disability. Additionally, the evidence does not show, that his employability is adversely affected by bilateral hearing loss and tinnitus disabilities. Rather, as noted, the Veteran asserted that neuropathy, diabetes mellitus, and loss of a leg rendered him unemployable. While he indicated that tinnitus contributed to his unemployability, an October 2019 VA examiner found that it did not render him unable to work. The October 2019 VA examiner also found that bilateral hearing loss contributed to his unemployability based on the Veteran’s own assessment that he had trouble hearing and understanding others. However, this alone does not render him unemployable. In this regard, bilateral hearing loss was not listed as a contributing disability on his SSA evaluations or on his VA Form 8940. On his SSA paperwork, he did not allege any difficulties completing activities of daily living. Additionally, his VA form 8940 showed that he has a college education and worked as a computer technician for many years. Thus, there is no indication that he has been precluded from obtaining or maintaining a gainful occupation based on his service-connected bilateral hearing loss and tinnitus and no exceptional disability picture has been shown. Therefore, given that the evidence does not show that his service-connected disabilities alone cause an exceptional disability picture characterized by frequent hospitalizations and missed time from work, referral for extraschedular consideration is not warranted. The Board has considered the Veteran’s lay statements regarding his capacity to work. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.