Citation Nr: 21025589 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-07 206 DATE: April 28, 2021 ORDER A total disability rating due to individual unemployability is denied. FINDING OF FACT The evidence is insufficient to establish that the Veteran is unemployable due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a total disability rating due to individual unemployability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for bilateral hearing loss and assigning an initial disability evaluation. In January 2018, the Board issued a decision regarding the Veteran’s underlying appeal of his rating for service-connected bilateral hearing loss. On appeal of that decision, the U.S. Court of Appeals for Veterans Claims <(“Court”)> issued a September 2020 memorandum decision affirming the Board’s decision on the merits of entitlement to an increased rating for bilateral hearing loss but remanding to the Board for consideration of the Veteran’s contentions of total disability due to individual unemployability. The Court noted that because a prior Board decision in the matter had found that the record raised the issue of entitlement to a total disability rating due to individual unemployability, the claim was part and parcel of the Veteran’s increased-rating claim and needed to have been addressed within the January 2018 decision. Accordingly, the Board now considers entitlement to a total disability rating due to individual unemployability. A total disability rating due to individual unemployability (TDIU) may be assigned if 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. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Id. Here, the Veteran is service connected for bilateral hearing loss, rated noncompensable from July 9, 2008; at 10 percent from June 1, 2010; and, at 40 percent from June 4, 2020. The Veteran is also service connected for tinnitus, rated at 10 percent from July 9, 2008. Thus, the Veteran has two service-connected disabilities, but at no point does the combined rating rise to 70 percent, and therefore the first criterion for a TDIU is not satisfied. 38 C.F.R. § 4.16(a). Notwithstanding, under 38 C.F.R. § 4.16(b), if a Veteran is found to be unemployable due to service-connected disabilities but does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a), his claim may be referred to the Director, Compensation Service, for consideration of an extra-schedular TDIU. 38 C.F.R. § 4.16(b). Thus, the Board will consider whether the Veteran is unemployable. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one 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. Ray v. Wilkie, 31 Vet. App. 58, 72–73 (2019). In evaluating a Veteran’s ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran’s employment history includes work as an aircraft technician, as a laborer on flooring and decoration, and as a machine operator. He has an associate degree. In August 2009 letters from two of the Veteran’s acquaintances, it was related that the Veteran has been disabled for a long time and has become more disabled by his illnesses. The Veteran was stated to be unable to obtain and keep a job “due to considerable pain and discomfort” from “back pain,” “bad arthritis . . . [in] his shoulders, back, legs, arms and hands.” The Veteran was sometimes unable to walk due to soreness or numbness in the feet, and he had to use a cane for balance. The Veteran was also stated to be diabetic and to have high cholesterol, a left carotid artery blockage, hearing loss, and hemorrhoids. The Veteran was taking medication and experienced side effects from them. In an October 2009 statement, the Veteran wrote, “I was diagnosed with left carotid artery blockage which prevents me from working.” In November 2009, the Veteran submitted evidence of his diagnoses of and treatment for “my neck pain, bilateral carpal tunnel, knee arthralgia-vitreous detachment/degeneration, [and] hypercholesterolemia.” He stated, “Th[ese] are my severe impairments which keep me from engaging in a substantial gainful activity since May 2007.” In a February 2010 letter, the Veteran submitted evidence of an additional diagnosis of “high blood pressure,” which he stated was another severe impairment preventing him from engaging in substantially gainful employment since May 2007. In an October 2016 statement, the Veteran contended there were several reasons why his bilateral hearing loss prevented him from working: he was unable to follow instructions adequately; he was hindered in using a telephone for a long time; despite wearing hearing aids, sometimes he still could not hear very well; people needed to get close to him so he could hear them better; he felt nervous when he had to ask people to repeat what they had said; and sometimes he wrote down words incorrectly because he wrote them the way he had incorrectly heard them spoken. In October 2016 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran stated that the reason he was not working is “Because my hearing [and] I have other disabilities that prevent[] me.” He added that his hearing loss would interfere with his ability to use communication devices. In a June 2020 letter, the Veteran listed his medical conditions including hearing loss, carpal tunnel syndrome, low back herniated disc and degenerative disc, sleep apnea, diabetes mellitus type 2, small plaque carotid artery, neck pain and stiffness, knee osteoarthritis, knee arthralgia, tinnitus, peripheral vascular disease, a heart condition, a blood pressure condition, glaucoma, diabetic eye diseases, and hypercholesterolemia. He wrote, “My medical disabilities have prevent[ed] me from working in the past 10 years. And my hearing loss have prevent[ed] me from having a gainful work, I have a college degree.” He added that he “stop[ped] working because of lower back pain in 1992” and had last worked in 2005. In an August 2020 statement, the Veteran referenced a past VA document that found the Veteran has disabilities that prevented him from working. In a November 2020 statement, the Veteran stated that he stopped working as an aircraft technician because of his lower back pain, and that if he works then his lower back pain flares up. After review of all of the evidence, the Board finds that the evidence is insufficient to establish that the Veteran is unemployable due to his service-connected disabilities. Though the Veteran has submitted a statement of the limitations imposed by his service-connected hearing loss and has contended that these impair his ability to obtain and maintain employment, the Board does not find that the evidence has substantiated that these impairments alone would preclude the Veteran from obtaining and maintaining substantially gainful employment. For example, the Veteran submitted statements and remarked at the Board hearing that his hearing loss would interfere with his ability to use communication devices, but the Veteran’s work history reflects that he has experience in different jobs, such as aircraft maintenance and machine operation, which the Veteran has not alleged demand significant use of a telephone or other communication device. Moreover, the Board is cognizant of the other effects of the Veteran’s hearing impairment, to include mishearing other people when they speak and incorrectly recording what he misheard, as well as a feeling of nervousness needing to ask people to repeat themselves. Notwithstanding, the Board does not find that these limitations alone would outright preclude the Veteran from obtaining and maintaining any substantially gainful employment. See 38 C.F.R. § 4.16(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board’s role is to assess the weight of all evidence). The Board acknowledges that the Veteran may in fact be unemployable due to his disabilities. Entitlement to a total disability rating due to individual unemployability, however, specifically requires evidence establishing that the Veteran would be unemployable due to his service-connected disabilities alone. 38 C.F.R. § 4.16. Here, the evidence is not sufficient to show that the Veteran’s unemployability would be due to his service-connected bilateral hearing loss and tinnitus alone, and therefore a TDIU cannot be awarded. Id. As a final matter, the Board acknowledges submissions from the Veteran, to include a November 2020 statement of “I am submitting new evidence. 50% VA disability compensation service connected, hearing loss,” which regards the severity of his service-connected bilateral hearing loss. In its January 2018 decision, the Board rendered a decision on the Veteran’s claim for an increased rating for hearing loss, and that decision was affirmed by the Court’s September 2020 memorandum decision. Thus, the Board no longer has jurisdiction over this issue and cannot take up the issue within the present decision. See generally 38 C.F.R. § 20.104 (Jurisdiction of the Board). If the Veteran seeks an increased rating for his service-connected bilateral hearing loss, he may file a new claim. Because the evidence is insufficient to establish that the Veteran is unemployable due to his service-connected disabilities alone, referral for an extraschedular total disability rating due to individual unemployability is not warranted. In turn, a total disability rating due to individual unemployability is denied. 38 C.F.R. § 4.16. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.