Citation Nr: 21026690 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 07-34 622 DATE: May 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular rating criteria for a TDIU rating, and his service-connected disabilities do not prevent him from securing or maintaining substantially gainful employment. 2. The Veteran's service-connected disabilities do not warrant a referral to the Director of Compensation and Pension for extraschedular consideration for a TDIU rating. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating are not satisfied. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1954 to October 1956 and from August 1957 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision. The issue of entitlement to a TDIU rating was remanded by the Board in June 2011, September 2017, and September 2020. The Board finds that there has been substantial compliance with its remand directives, and that no prejudicial error exists in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. The Veteran maintains that he is unemployable, primarily due to his service-connected hearing loss, tinnitus, and vertigo. See March 2008 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940); see also February 2008 Decision Review Officer (DRO) Hearing Transcript. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. In Ray v. Wilkie, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the time period under review, the Veteran's vertigo was rated as 10 percent disabling, bilateral hearing loss as noncompensable, and tinnitus as 10 percent disabling. The combined disability rating from August 31, 2007, forward was 20 percent. Accordingly, the criteria for schedular consideration of a TDIU rating are not satisfied. Pursuant to the Board's September 2020 remand, the Veteran was provided with correspondence in September 2020 instructing him to contact the employer he provided on his March 2008 VA Form 21-8940 and request that the employer complete and return VA Form 21-4192, Request for Employment Information. The September 2020 correspondence advised that a decision could be made on the issue of a TDIU rating after 30 days. October 2020 correspondence from VA to the Veteran advised that the employer he listed had not responded to requests for information for his employment history, that VA deemed this information to be unavailable, and that if he possessed any relevant information to submit such information. The Veteran did not respond to VA's correspondence with information for the employer that he listed on the March 2008 VA Form 21-8940. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist the VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); Hurd v. West, 13 Vet. App. 449, 452 (2000); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As a result of VA's inability to obtain the Veteran's employment history, such information could not be verified or considered. In cases where the schedular requirements for TDIU consideration are not satisfied, VA policy is to grant a TDIU rating in all cases where service-connected disability precludes gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). Where the percentage requirements are not satisfied but unemployability is shown, the case must be referred to the Director of the Compensation and Pension Service for extraschedular consideration. Id. The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). The most probative evidence of record does not show that his service-connected disabilities preclude gainful employment. The Veteran advised that he has difficulty balancing while standing and falls due to his vertigo. See February 2008 DRO Hearing Transcript. The Veteran's spouse provided that he was unable to continue teaching because of his vertigo and his subsequent fainting and falling asleep. Id. The Veteran also stated that he has difficulty understanding conversational speech. Id. The Veteran's VA treatment records also provide information concerning the severity of his service-connected disabilities. The Veteran's VA treatment records show that he complained of vertigo and associated blurred vision and dizziness. A May 2008 VA Primary Care Note states that the Veteran has positional dizziness. A January 2018 private treatment record provides that the Veteran has persistent vertigo The Veteran's VA examination reports also provide evidence concerning the impact of his service-connected disabilities on his employability. An October 2007 VA Audio Examination states that he has decreased hearing in his left ear, tinnitus, and vertigo episodes. The Veteran reported that his greatest difficulty relates to following group conversations and watching television. The examination report provides that the Veteran has left ear hearing loss and reduced speech recognition ability. The October 2011 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire states that the Veteran's hearing loss causes difficulties understanding conversational speech, mainly in the presence of background noise, following instructions, watching television, and listening to the radio. The examination report also provides that the Veteran's tinnitus does not impact his ability to work. The September 2012 Disability Benefits Questionnaire Ear Conditions Exam noted hearing loss. The October 2012 Disability Benefits Questionnaire Hearing Loss and Tinnitus Exam found that due to the Veteran's hearing loss he had difficulties understanding conversational speech, mainly in the presence of background noise and difficulties following instructions. His tinnitus did not impact his ability to work. The December 2017 VA Ear Conditions (including Vestibular and Infectious Conditions) Disability Benefits Questionnaire indicates that the Veteran has tinnitus more than once weekly lasting for more than 24 hours and vertigo one to four times per month lasting for less than one hour. The Veteran's ear or peripheral vestibular condition does not impact his ability to work per the examination report. The Board finds the medical opinions obtained from the VA examiners to be especially probative as the opinions represent the informed conclusion of medical professionals, and are based on a review of the Veteran's medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board acknowledges the statements from the Veteran and his spouse indicating that his symptoms make it difficult for him to sustain meaningful or gainful employment. In particular, the Veteran and his spouse advised that he has hearing loss and his vertigo causes difficulty standing and causes him to fall. However, this evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities, but rather the symptoms discussed make it difficult for him to sustain gainful employment. Therefore, because the most probative evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude gainful employment, the case is not referred to the Director of the Compensation and Pension Service for extraschedular consideration. Consequently, the benefit-of-the-doubt rule does not apply, and a TDIU rating is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean Mussey, 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.