Citation Nr: 22005331 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 18-28 487A DATE: February 1, 2022 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on extraschedular basis, prior to June 29, 2010, is granted. REMANDED Entitlement to special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. The Veteran is receiving the maximum schedular rating for tinnitus; his symptoms of dizziness, vomiting, and passing out are not related to tinnitus. 2. Resolving all reasonable doubt in the Veteran's favor, his service-connected disabilities have precluded him from securing or maintaining substantially gainful employment prior to June 29, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. 2. The criteria for entitlement to an extraschedular TDIU, prior to June 29, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). On his June 2018 VA Form 9, the Veteran requested a Board hearing. However, in a March 2021 correspondence from the Veteran's attorney, he waived his right to a Board hearing. As such, the Board will proceed with its appellate review as there is no pending hearing request. 38 C.F.R. § 20.703. The Board remanded the appeal in July 2017 and June 2021 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902(c). 1. Entitlement to a higher rating for tinnitus For the reasons that follow, the Board finds that a rating in excess of 10 percent for tinnitus is not warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's tinnitus is rated under DC 6260, which includes a 10 percent rating for recurrent tinnitus with no higher ratings available. Notes for this DC state a separate evaluation may be assigned under DC 6100 (hearing loss), DC 6200 (chronic suppurative otitis media, mastoiditis, or cholsteatoma), and DC 6204 (peripheral vestibular disorders); assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head; and do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this DC, but evaluate it as part of any underlying condition causing it. The Veteran is currently assigned a 10 percent rating for his service-connected tinnitus from June 4, 1977. There is no legal basis for assigning a higher rating under DC 6260 as the Veteran is currently in receipt of the highest rating for his service-connected tinnitus. The Board has considered separate ratings under DC 6100, DC 6200, and DC 6204. The Veteran is already in receipt of separate disability ratings for his bilateral hearing loss and otitis media. As such, additional consideration under DC 6100 and DC 6200 is not warranted. As to DC 6204, the Board finds that a separate rating is not warranted. In this regard, pursuant to June 2021 Board's remand directive, the Veteran underwent a September 2021 VA examination to determine whether his symptoms of dizziness, vomiting and passing out represent manifestations of his tinnitus. At that time, the Veteran reported experiencing constant bilateral ringing in his ears that has been relatively stable for several years. He reported no changes to history of noise exposure. The Veteran also reported experiencing dizziness associated with his current health issues. Upon examination, the examiner opined that longstanding and unchanged tinnitus is less likely than not related to his new symptoms. The examiner added that the Veteran relates his dizziness to his most recent health changes. However, whether these recent health changes have caused dizziness, vomiting, and passing out is beyond the scope of practice of audiology. The Board accords great probative weight to June 2021 VA opinion as the examiner considered all of the pertinent evidence of record, to include the statements of the Veteran and provided a complete rationale, relying on and citing to the records reviewed. The examiner also offered a conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The June 2021 VA opinion is also consistent with the following evidence of record. A January 2004 VA treatment record shows that the Veteran experienced nausea, vomiting and loss of consciousness from medication for his gout. An August 2005 VA treatment record shows that the Veteran experienced vomiting and passing out after consuming appetizers at a party. At a January 2004 VA examination, the Veteran reported experiencing upset stomach if he consumes more than 800 mg of Motrin for his low back pain. At that time, he also reported having developed dizziness over the past 10 years with the onset of his neck pain. The January 2004 VA examiner found no evidence that would indicate that the Veteran's dizziness was cause by his low back condition. June 2011 and August 2012 VA treatment records show that medication prescribed for the Veteran's hypertension caused him dizziness in the past. May and August 2016 VA treatment records show that the Veteran experienced dizziness related to his blood glucose levels and medication prescribed for his diabetes. A November 2017 VA treatment record notes increased incidence of headaches and dizziness since blood pressure has worsened. An October 2020 VA treatment record indicates that the Veteran's dizziness may be related to his blood pressure medication. A September 2021 VA treatment record shows that the Veteran experienced dizziness, loss of consciousness and vomiting when he came back home from being in the heat. At that time, the Veteran reported having a history of passing out due to cardiac reasons. Accordingly, based on the foregoing, a higher rating for the Veteran's tinnitus is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the probative evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. 2. Entitlement to a TDIU prior to June 29, 2010 For the reasons that follow, the Board finds that a compensation based on a TDIU, prior to June 29, 2010, is warranted. Under the relevant laws and regulations, total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Additionally, entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" in 4.16 has both an economic and a noneconomic component. Ray, supra. The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the Veteran is able to "secure or follow" gainful employment. Id. In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran's history, education, skill, and training, the Board should consider whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the Veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran 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; if there are two or more 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. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. In relevant part, before June 29, 2010, the Veteran was service connected for: (1) degenerative disc disease of the lumbar spine (low back disability), rated at 20 percent disabling from June 4, 1997 and 40 percent from October 28, 2003; (2) tinnitus, rated at 10 percent from June 4, 1997; (3) bilateral hearing loss, rated noncompensable from June 4, 1977; and (4) left otitis media, rated noncompensable from June 4, 1977. The Veteran's combined evaluation prior to June 29, 2010 was 30 percent from June 4, 1977 and 50 percent from October 28, 2003. Thus, prior to June 29, 2010, the Veteran did not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a). When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Turning to whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. In August 2012, the Director denied entitlement to TDIU on an extraschedular basis. The Director's decision is not binding on the Board, and the Board will conduct its own de novo review of the TDIU claim. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Accordingly, the Board will focus its analysis on whether the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities prior to June 29, 2010. For the reasons expressed below, the Board finds that the evidence is in approximate balance as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected disabilities prior to June 29, 2010. Turning to the evidence of record, the Veteran's military occupational specialty (MOS) was automotive electrician. See DD Form 214. His employment history includes work in auto technology, bank operations and general business. See February 2005 VA Form 28-1902n. He worked for the federal government as a loss claims clerk, exit counselor and personnel security specialist. With regards to the Veteran's education level, his education includes a bachelor's degree. See VA treatment records. As to the Veteran's contentions, he asserts that prior to June 29, 2010, he was unable to work due to his low back disability. See VA 21-8940. The Veteran's representative also asserts that his service-connected physical disabilities prevent him from maintaining substantially gainful employment since 2000. See April 2015 Correspondence. The Veteran underwent a VA examination for his low back disability in January 2004. At that time, the Veteran reported experiencing constant back pain and taking pain killers for his symptoms. He reported that larger doses of pain medication upset his stomach. The Veteran also reported experiencing incapacitating episodes that render him unable to get out of bed. He reported being employed until 2000 as a household goods inspector, but he was unable to perform him duties due to his low back pain. The examiner noted that the Veteran's range of motion is limited to 50 degrees with pain throughout, with additional limitations during flare-ups. The examiner also noted that the Veteran's ability to drive is limited because he is required to stop hourly due to back pain. The Veteran underwent another VA examination for his low back disability in December 2009. At that time, the Veteran reported that he has a limited ability to walk or stand and no ability to walk up any stairs or elevation. He reported experiencing flare-ups on weekly basis, lasting for a few hours at a time. The Veteran reported continuously using a brace and a cane during flare-ups. On examination, the examiner noted that the Veteran is "highly symptomatic," and he ambulates extremely slowly. The examiner also noted tenderness over his back and extremely painful movements from inception to completion. The examiner further noted that the activities of daily living are difficult for the Veteran to perform but not impossible. The examiner concluded that the Veteran is not employable due to his low back disability pain level. The Veteran also underwent a VA examination for his hearing impairment, to include bilateral hearing loss and tinnitus, in December 2009. At that time, the Veteran reported experiencing decreased hearing but no changes in his tinnitus symptoms. The examiner noted sensorineural hearing loss. No opinion as to functional impact was provided. A review of the Veteran's treatment records shows that prior to June 29, 2010, the Veteran was unemployed and spent much of his day at his personal workstations at home, doing work on his personal computer. See June 2003 VA treatment record. He quit his job in 2000 because of pain but continued to regularly perform volunteering activities. See March 2004 VA treatment record. The evidence of record also includes a February 2005 VA Form 28-1902n, Counseling Record Narrative Report for VA vocational rehabilitation program, completed by a counseling psychologist. In the report, the narrator noted that the Veteran has an overall impairment of employability with primary restrictions on occupations that include prolonged sitting, climbing, bending, standing and heavy lifting. The narrator added that the Veteran's ability to obtain or maintain employment could aggravate his disabilities. The narrator noted that the Veteran had to terminate his prior employment due to health-related problems and he previously could not reach the point of rehabilitation after participation in the program. The narrator explained that the Veteran would need some update job skills training to qualify for employment, but he has not overcome the effects of his impairment of employability due to his service-connected disabilities. The narrator concluded that the Veteran has a serious employment handicap, and it may not be feasible to achieve a vocational goal. After review of all the evidence, lay and medical, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran was precluded from maintaining gainful occupation for the rating period on appeal prior to June 29, 2010. In this regard, the Board notes that in accordance with Ray, when taking non-economic and economic components into consideration, prior to June 29, 2010, the Veteran did not have the physical ability to perform the type of activities required by his prior occupation. As evidenced by the medical and lay evidence discussed above, his physical occupational abilities were severely impacted by his service-connected low back disability. Further, as noted, the Veteran's history, education, skill, and training indicate that he has the proficiency to work in an office-like setting, performing administrative or clerical work where little physical exertion is required. Nonetheless, as discussed above, the evidence of record shows that prior to June 29, 2010, the Veteran had a limited ability to sit for prolonged periods of time due to low back pain, experienced flare-ups on weekly basis and had difficulties with activities of daily living. He also reported that larger doses of pain medication caused impairment. In addition, the June 2005 vocational counseling psychologist concluded that the Veteran has a serious employment handicap, and it may not be feasible to achieve a vocational goal. The December 2009 VA examiner found the Veteran "highly symptomatic" and concluded that the Veteran is not employable due to his low back disability pain level. Accordingly, resolving all doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis, prior to June 29, 2010, is warranted. REASONS FOR REMAND Entitlement to SMC The Veteran's representative contends that SMC is warranted because the Veteran's service-connected low back disability warrants a total schedular rating and his other disabilities, to include radiculopathy, depression, and tinnitus combine to more than 60 percent rating. See April 2015 Correspondence. A claim for increased disability compensation may include the inferred issue of entitlement to SMC even where the Veteran has not expressly placed entitlement to SMC at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). In July 2017, the Board referred the issue of entitlement to SMC to AOJ for appropriate action, it does not appear that the Board's referral was addressed. In light of the Board's grant of entitlement to TDIU prior to June 29, 2010, and the procedural development presented during the pendency of this appeal, the Board will remand the issue of entitlement to SMC to the AOJ for review and adjudication. The issue is REMANDED for the following action: 1. After completing any action deemed necessary, adjudicate the issue of entitlement to SMC, to include a total disability rating plus 60 percent. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.