Citation Nr: 21029628 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 10-45 263 DATE: May 14, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, prior to April 8, 2014, is granted. FINDINGS OF FACT 1. Prior to April 8, 2014, the Veteran was service-connected for posttraumatic stressor disorder (PTSD) with a depressive disorder, rated as 30 percent disabling as of February 23, 2010; for vertigo with staggering, rated as 30 percent disabling; for tinnitus, rated as 10 percent disabling; and for bilateral hearing loss and residuals of left tympanic membrane perforation, both rated as noncompensable. 2. Resolving reasonable doubt in the Veteran's favor, prior to April 8, 2014, his service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to April 8, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from June 1968 to June 1970, including service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge. This current appeal before the Board arose from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Board remanded the issue of entitlement to a TDIU to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Entitlement to a TDIU on a schedular basis was later granted, effective April 8, 2014, in an August 2018 rating decision. In November 2018 and February 2021, the Board remanded the current matter of entitlement to a TDIU prior to April 8, 2014, to the AOJ for still further development. The Board disposed of other issues on appeal in the July 2014 and February 2021 decisions. In August 2012, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who has since retired. In a September 2018 letter, the Veteran was notified of his right to request a new hearing before another VLJ who would decide his appeal. The Veteran did not respond and was presumed to not desire to have another Board hearing. A transcript of the August 2012 hearing is of record. Extraschedular TDIU prior to April 8, 2014 Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 U.S.C. § 501; 38 C.F.R. § 4.16(a). Where entitlement is based on a single service-connected disability, the disability must be rated 60 percent or higher to qualify for a TDIU on a schedular basis. For two or more service-connected disabilities, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant's disabilities must be 70 percent or greater. Id. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities will be rated totally disabled. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). Therefore, in the cases of all veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph 38 C.F.R. § 4.16(a), rating boards should submit the case to the Director of Compensation Service (Director) for extraschedular consideration. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Prior to April 8, 2014, the Veteran was service-connected for PTSD with depressive disorder, rated as 30 percent disabling as of February 23, 2010; for vertigo with staggering, rated as 30 percent disabling; for tinnitus, rated as 10 percent disabling; and for bilateral hearing loss and residuals of left tympanic membrane perforation, both rated as noncompensable. Thus, prior to April 8, 2014, he did not meet the schedular requirements for a TDIU. The instant case was, however, referred to VA's Director of Compensation Service in July 2018 and February 2021. Although VA is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) during a portion of the claim period has twice been referred to the Director and the Director has issued the requisite decisions. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal"). In the July 2018 and February 2021 requests for an advisory opinion, the AOJ observed that review of all evidence of record showed that the Veteran's educational level was at least 9th grade, that he had Commercial Driver's License (CDL) training, that his relevant work history consisted solely of truck driving, and that he reported to VA examiners and to the Social Security Administration (SSA) that his service-connected ear conditions no longer enabled him to successfully maintain employment. The request noted that evidence obtained from SSA records showed that the Veteran was considered permanently disabled and unemployable from October 1, 2008. The primary disabilities upon which that decision was based were disorders of the back (discogenic and degenerative), a nonservice-connected disability; the evidence confirmed, however, that his had reported that his service-connected dizziness (vertigo with staggering) had negatively affected his ability to perform occupational tasks resulting in him being unable to maintain substantially gainful employment. The request also noted that the medical evidence showed that all of his service-connected disabilities had impacted his ability to obtain and maintain substantially gainful employment. In particular, he consistently complained that his residuals of vertigo interfered with his ability to drive a truck to the point that he retired from his job and sold his truck. In a February 2010 notice of disagreement, the Veteran stated that his vertigo was getting worse, and that he suffered daily with chronic pain in his ear and dizziness. He maintained that he could hardly turn his neck, and that his movements had to be slow and concentrated, otherwise he was staggering and falling. At his August 2012 Board hearing, the Veteran testified that his dizzy spells were increasing in severity, and that he did very little driving at that point. He noted that his dizzy spells could occur from two to three times perf day, and could occur up to four days in a row. In an August 2014 statement, the Veteran reported that at the time his SSA disability benefits were awarded in 2009, his vertigo had reached the stage that he was unable to drive his truck. He noted that he was dealing with a debilitating infection from the ear for approximately 13 years, which was discovered to be a cholesteatoma. Even though the cholesteatoma was removed, his doctor told him that he still had damage done to his ear, and continued to have hearing loss, pain, dizziness, and tinnitus. He noted that his PTSD symptoms mainly consisted of lack of sleep and nightmares. The Veteran's SSA records also reference his problems with dizziness. In his application, he reported that he had dizziness from vertigo, which was his main concern. He described that if he were sitting, in motion, in his truck, he could get very dizzy. He noted that, while he had never passed out, the situations would be very scary. He maintained that the dizziness became unbearable in October 2008, and that he was too scared to drive anymore. Review of the medical evidence confirms that the Veteran has consistently reported having to quit truck driving due to his dizziness. The evidence shows that he drove trucks for approximately 39 years before having to sell his truck. During a November 2009 VA examination, the Veteran described his vertigo symptoms as happening primarily when he was standing, and sometimes when he would be getting up. The report noted that his statement that he was unable to drive his truck with confidence secondary to his staggering. In addition to his recurrent episodes of staggering, the examiner noted that he also sometimes experienced imbalance when he had active otorrhea, and that his recurrent bouts of otorrhea were bothersome, although they were treated with ear drops and clear without persistent chronic inflammation changes. During VA examination in March 2012, the Veteran reported that his ear disease was significantly better since undergoing a modified radical mastoidectomy approximately one year prior to the examination. The report noted, however, that he still complained of ongoing vertigo. The assessment noted continued eustachian tube dysfunction, chronic middle ear disease, and labyrinthitis. An October 2014 VA PTSD examination report provided an in-depth educational and work history for the Veteran. The report noted that he withdrew from formal education after completing the 8th grade and that he did not receive his GED, but rather, went through multiple failed attempts to obtain it. He reported that he discontinued work because he was having a bad neck and would get chronic ear infections and dizziness. He noted that his back and spine hurt and that he could not just stay seated. He reported that truck driving was all he had done, and that he could not sit very long in a vehicle. The examiner noted that the Veteran did not sleep due to nightmares, which significantly affected his ability to work. In the report of an October 2014 VA audiology examination, the examiner noted that he Veteran's hearing loss would cause difficulty in maintaining successful employment; difficulty understanding instruction in the presence of ambient noise, difficulty on the phone, and that he would have to work in a low communication demand job. During a subsequent September 2016 VA ear conditions examination, the Veteran reported having had recurrent imbalance/disequilibrium which he could feel coming on, and required that stop any activity. He noted that symptoms would clear within five minutes, but that since his lightheadedness/imbalance sensations could occur while driving, he limited his activity. While the Board notes that these examination findings were provided after the specific time period considered for the Veteran's TDIU in the current appeal, the severity of his hearing loss at the time of the October 2014 examination was not significantly different from prior VA audiology examinations. Similarly, his imbalance/disequilibrium has consistently persisted during the pertinent appeal period. While VA's Director of Compensation Service twice determined that the overall evidence failed to support the contention that any of his service-connected disabilities, or a combination thereof, prevented gainful employment prior to April 8, 2014, the Board notes that the Director's February 2021 determination relied on possible accommodations under the Americans with Disabilities Act, and an apparent change in the American workplace that has dramatically shifted to less strenuous jobs compared to those of years ago. The Director's determination did not appear to consider the Veteran's current education, skills, training, or his employment as a truck driver over nearly four decades. After carefully considering the foregoing evidence, the Board finds that, with resolution of reasonable doubt in the Veteran's favor, the record indicates that he has was unable to secure or follow a substantially gainful occupation for the entire appeal period prior to April 8, 2014, due to his service-connected disabilities. In this regard, the evidence clearly shows that the entirety of the Veteran's employment experience has consisted of truck driving. The evidence also clearly shows that he consistently complained of having difficulties driving due to the dizziness and vertigo that he would experience multiple times a time and multiple times each week. Significantly, he has been noted to suffer from severe vertigo symptoms and has been in receipt of the highest rating assignable for the service-connected vertigo for the entirety of the appeal period under consideration. Moreover, his service-connected PTSD, in effect as of February 23, 2010, has also been noted to have had a significant detrimental effect on his employment abilities, due to poor sleep as a result of nightmares, and his service-connected hearing loss has been noted to caused employment impairment as a result of difficulty understanding instruction in the presence of ambient noise and over the phone. While the evidence also indicates that the Veteran reported having to stop driving due to a bad neck, the evidence clearly establishes that the reported vertigo and dizziness symptoms have caused significant problems with the Veteran's ability to continue driving a truck. Further, although the Veteran's ear problems appeared to improve following surgery in 2011, the medical evidence continued to note his ongoing problems with vertigo, dizziness, and labyrinthitis. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected vertigo with staggering, tinnitus, bilateral hearing loss and residuals of left tympanic membrane perforation, prior to February 23, 2010, and PTSD with depressive disorder, as of that date, rendered him unable to follow a substantially gainful occupation for which his education and work experience would allow, prior to April 8, 2014. Resolving reasonable doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis is warranted for the entirety of the appeal period prior to April 8, 2014. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.