Citation Nr: 21029225 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-31 903 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 1, 2020 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) from December 1, 2020 is remanded. FINDING OF FACT Prior to December 1, 2020, the probative evidence is at least in relative equipoise that the Veteran's service-connected disabilities render him unemployable. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to December 1, 2020 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from February 1957 to August 1960. In December 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. A February 2020 Board decision denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the February 2020 Board decision. The Court found the Board did not provide adequate Reasons and Bases in finding that the Veteran's disabilities did not render him unemployable. Specifically, the Board did not adequately consider the Veteran's previous employment and education and did not explain why the Veteran would be able to perform clerical or administrative work in light of his education and work history. Entitlement to TDIU: Prior to December 1, 2020 The Veteran contends that his service-connected disabilities, specifically his service-connected bilateral hearing loss, render him unemployable. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment and may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran already meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) prior to December 1, 2020 as his service-connected bilateral hearing loss is rated as 80 percent disabling. He is also service-connected for tinnitus rated as 10 percent disabling. Therefore, the question at hand is whether his service-connected disabilities keep him from securing substantially gainful employment. After review of the evidence of record, the Board finds it does. The evidence of record shows the Veteran completed one year of college and his occupational history has primarily consisted of working in construction and transporting vehicles. In August 2016, the Veteran attended a VA examination. The examiner noted the Veteran's hearing loss would likely cause difficulty hearing in situations with reduced visual cues (i.e. phone conversations, low lighting, communication from distance) as well as difficulty in background noise. The examiner further stated that without the use of the Veteran's hearing aids, safety may be of concern as the Veteran will likely have difficulty hearing softer sounds which would otherwise alert him to nearby dangers, as well as emergency alarm sounds in his environment. The Veteran received another VA examination in September 2019. The Veteran reported having trouble communicating with anybody, anywhere, to include conversations. He reported often not knowing what is going on. Upon review of the evidence of record, the Board finds that the Veteran's service-connected bilateral hearing loss severely limits the occupation work the Veteran can perform. The Veteran's hearing would prevent him from performing jobs that required lots of communication, especially telephone communication. Further, the Board notes the Veteran reported that at his last employment as a vehicle delivery driver, his hearing caused safety issues such as an inability to hear sirens, honks, or other emergencies on the road. Moreover, the Board notes that the Veteran contended that his last employment more closely represented a protected environment as his employer knew of his condition and often made special accommodations, to include completing paperwork for him so he would not have to communicate with other personnel. The Veteran also reported only working 20 to 25 hours a week at his last employment. Further, the Veteran would not be able to work in his previous employment of construction as his hearing disability would cause additional safety concerns as he would be unable to hear instructions or warnings from others regarding dangerous conditions, as well as his service-connected tinnitus could cause him to be distracted. Lastly, the Board notes that the Veteran's records do not show the Veteran has familiarity with or training in computers, data entry, or office-like work settings, and therefore, would likely not be able to transition into other such safer gainful employment. Accordingly, the Board concludes that the Veteran has been rendered unable to obtain or maintain gainful employment due to his service-connected disabilities prior to December 1, 2020 and a grant of TDIU is warranted. REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's remaining claim. Entitlement to TDIU: From December 1, 2020 During the pendency of the claim, the Veteran's bilateral hearing loss was decreased from a disability rating of 80 percent to 40 percent from December 1, 2020. The Veteran's only other service-connected disability is tinnitus rated as 10 percent disabling. The Veteran's compensable disabilities give him a combined rating of 50 percent from December 1, 2020, and thus, the Veteran does not meet the requirements of 38 C.F.R. § 4.16 (a). However, the Veteran has continued to contend that his bilateral hearing loss prevents him from being employable. He reports not being able to hear communications, to include telephone and face to face communication. The Board notes that an extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board finds that a remand is required in order to refer the claim to the Director of VA's Compensation and Pension Service for consideration of entitlement to TDIU from December 1, 2020, in accordance with 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the claim to the Director of VA's Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The Director should consider all available medical evidence of record, to include all VA examinations related to his service-connected disabilities. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.