Citation Nr: 21041450 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-06 880 DATE: July 9, 2021 ORDER Entitlement to a total disability rating based on unemployability (TDIU), on an extraschedular basis, for the period prior to June 13, 2016 is granted. FINDING OF FACT Prior to June 13, 2016, the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on unemployability (TDIU), on an extraschedular basis, for the period prior to June 13, 2016 have been met. 38 U.S.C. §§ 5103 (a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1980 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in April 2018, May 2020, and April 2021. 1. Entitlement to a total disability rating based on unemployability (TDIU), on an extraschedular basis, for the period prior to June 13, 2016 In April 2021, the Board remanded the issue of entitlement to a TDIU prior to June 13, 2016 for extraschedular consideration. The AOJ granted entitlement to a TDIU beginning January 30, 2019 in a September 2020 rating decision, and thereafter, a December 2020 rating decision granted TDIU effective June 13, 2016, the date the Veteran met the schedular criteria for a TDIU. In a May 2021 advisory opinion, the Director, Compensation Service, opined that the overall evidence fails to support the contention that the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevents employment for the period prior to June 13, 2016. The Veteran asserts that he has been precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected disabilities, since August 2015. See June 2021 statement. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). 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, 363 (1993). Prior to June 13, 2016, the Veteran's combined disability rating for his service-connected disabilities was 50 percent. During this period, the Veteran is service-connected for bilateral hearing loss, evaluated as 40 percent disabling, and tinnitus, evaluated as 10 percent disabling. Accordingly, the Veteran did not meet the minimum schedular requirements for TDIU prior to June 13, 2016. 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU in this case prior to June 13, 2016 is on an extraschedular basis. 38 C.F.R. § 4.16(b). For the reasons expressed below, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected disabilities prior to June 13, 2016. Turning to the evidence, in his January 2019 application for a TDIU, the Veteran stated that he stopped working full-time in August 2015. In the application, he noted that all his work experience since 1989 was working as a pizza delivery man. He had three years of college education and had no additional training since he became too disabled to work. Records furnished by the Social Security Administration (SSA) noted that the Veteran was determined to be disabled as of January 2015, primarily due to arthritis. However, the Board notes that the Veteran also claimed his hearing disability as a major impairment in his SSA petition. Furthermore, SSA records show significantly reduced taxed social security earnings in 2016 and 2017 as compared to prior years. During a November 2017 VA audiological examination, the Veteran reported being unable to hear accurate orders or instructions at work, nor can he hear or understand friends and family clearly. The examiner assessed that he has severe sensorineural hearing loss and tinnitus bilaterally. Similar findings were made by another examiner during a previous March 2012 VA audiological examination. After review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining gainful occupation for the rating period on appeal prior to June 13, 2016. In this regard, the Board notes that in a recent precedent decision, in Ray v. Wilkie, 31 Vet. App 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Here, the Veteran indicated that his delivery position required being able to clearly hear orders and communicate with customers and supervisors. This is supported by the medical and lay evidence of record as discussed above. Furthermore, the Board acknowledges the December 2020 private employability evaluation by vocational consultant, P.T. The vocational consultant reviewed the Veteran's medical records, social security records, and interviewed the Veteran. It was assessed that his hearing loss precluded his ability to interact with others, as he would ask people to repeat what they had said, which caused them to become angry with the Veteran. Co-workers mocked him because of his difficulty hearing. He also was unable to hear and understand work instructions, which further complicated the working situation. It was noted that the Veteran transitioned from working full time as a delivery driver to working part-time in approximately August 2015 due to his difficulty performing his duties related to his service-connected conditions. Pertinently, the vocational expert opined in light of the aforementioned limitations, and based on the medical records, that the Veteran's service-connected bilateral sensorineural hearing loss and tinnitus have at least as likely as not precluded him from securing and following substantially gainful employment in any capacity, including unskilled sedentary employment, from at least August 2015 to the present. The Veteran's Social Security and medical records, as well as his sworn testimony and statements on his VA Form 21-8940 are consistent regarding his work history and disabilities. The Board recognizes that the Director, Compensation Service provided a negative advisory opinion. However, as a general matter, the Board is not bound by the Director's Advisory Opinion findings. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). Therefore, resolving all doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis prior to June 13, 2016, is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.