Citation Nr: 22018681 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-21 045 DATE: March 30, 2022 ORDER Entitlement to TDIU on an extraschedular basis is granted from August 13, 2012. FINDING OF FACT The Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation consistent with his education and work experience from August 13, 2012. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met from August 13, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.10, 4.15, 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a VA Regional Office (RO). In May 2021, the Veteran withdrew his request for a Board hearing. This matter was previously remanded for additional development in September 2021. The Veteran seeks a TDIU. He contends that he is unable to maintain substantially gainful employment due to his service-connected hearing loss, knee, and back disabilities. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it 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). The Director's decision is not evidence, but, rather, the de facto RO decision, and the Board must conduct de novo review of this decision. Id. at 238-39. The Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). Service connection is in effect for the following disabilities: bilateral hearing loss (0 percent from June 25, 2008, and 30 percent from May 28, 2010); degenerative joint disease of the left knee, status post total knee arthroplasty (10 percent from October 11, 2012; 100 percent from September 24, 2019; 30 percent from November 1, 2020); tinnitus (10 percent from June 25, 2008); and degenerative disk disease of the lumbar spine (10 percent from October 11, 2012). The percentage requirements of § 4.16 (a) are not met. A claim for TDIU was received in March 2013. The Veteran reported a history of employment in customer service, in a supply business, and as a handyman. He reported that his last full-time position ended in August 2012. He indicated that he lost 20 days of time at his last job due to his back and leg disabilities In the September 2021 remand, the Board considered factors set forth by the Court in Ray. The Board found that there was sufficient evidence to substantiate a reasonable probability that the Veteran may be unemployable due to his service-connected disabilities. In September 2021, the Board remanded the claim for referral of the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration under § 4.16 (b). In December 2021, the Director of Compensation and Pension reviewed the claim for extraschedular consideration. The Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment. For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his hearing loss, left knee replacement, and degenerative disk disease of the lumbar spine. In a November 2012 statement, the Veteran that he had been told several times, that, due to his hearing loss (wearing a hearing aid) that he was 'not a fit for the job." He stated that, due to the lifting restrictions put on him by his doctor, he cannot find even a part-time job in retail or manufacturing or anything else. He stated that he is "basically unemployable" due to his hearing loss and his back problems. A February 2013 VA examination noted that the Veteran has functional limitations due to his service-connected disabilities. The VA examiner noted that the Veteran had a 10-pound lifting restriction from his treating physician due to his back and knee conditions. The VA examiner further noted that the Veteran " [could] not squat or kneel or bend due to the back and left knee. No repetitive bending, no kneeling, or squatting." The examiner opined that the Veteran is capable of at least sedentary work. VA treatment records indicate that he reported that he had part-time jobs after August 2012. In January 2015 and January 2016, it was noted that the Veteran was working part-time repairing equipment. In a February 2016 statement, the Veteran reported that he worked as an independent contractor mowing lawns using a rider mower and plowing snow from June 2014 to June 2015. He indicated that he lost 30 days during that time period due to knee and back pain and earned approximately $9800. He stated that he was forced to stop working due to knee and back pain while driving the equipment. In a January 2017 statement, the Veteran indicated that he was working part-time but became unable to work at all in June 2015. A February 2016 VA examination described functional impairments due to hearing loss. The VA examiner noted that the Veteran has unaidable hearing in his right ear due to elevated air conduction thresholds, an elevated speech reception threshold and poor word recognition. The Veteran has a hearing aid for his left ear but still struggles due to poor word recognition in that ear. The Veteran relies on visual cues such as reading lips and facial expressions to communicate. In poor acoustic environments, such as in the presence of background noise, poor lighting, reverberant rooms, or sounds coming from the right, the Veteran will struggle to hear and will more likely than not be unable to carry on a conversation. The Veteran's communication partners will need to get his attention, speak face to face and reduce background noise to hold a conversation. The Board finds that the Veteran's part-time employment since August 2012 was not substantially gainful. His reported income of $9800 from June 2014 to June 2015 was below the defined Department of Commerce poverty threshold of $12,082 for one person in 2015 (https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html). Based on the income earned, the Board finds the Veteran's part-time work mowing and plowing snow was marginal employment and does not rise to the level of substantially gainful activity. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The evidence shows that the Veteran is unable to perform employment that requires lifting more than 10 pounds, bending, kneeling, or squatting. While a VA medical opinion found that the Veteran could perform sedentary work, a VA audiological opinion shows that his hearing loss disability impacts his ability to communicate and would make it difficult to carry on a conversation in any work environment. The Board finds that the evidence persuasively shows that his service-connected disabilities prevent him from performing sedentary work. Accordingly, entitlement to a TDIU on an extraschedular basis is granted from August 13, 2012, the date after the Veteran's last day of full-time employment. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.