Citation Nr: 23003003 Decision Date: 01/18/23 Archive Date: 01/18/23 DOCKET NO. 14-30 574 DATE: January 18, 2023 ORDER Entitlement to a total disability based on individual unemployability (TDIU) on an extra-schedular basis is denied. FINDING OF FACT The evidence does not establish that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extra-schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1978. This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2009 rating decision. In May 2018, the Board found that a 2012 notice of disagreement raised the issue of entitlement to a TDIU. The Board remanded the issue along with other claims for further development. The claim was again remanded in July 2020, December 2021, and August 2022 Board decisions. VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," is found at 38 C.F.R. § 4.16 (a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an "extra-schedular TDIU," is found at 38 C.F.R. § 4.16 (b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA's Director, Compensation Service in the first instance. 38 C.F.R. § 4.16 (b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, 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). For the above purpose 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, or of 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. Id. The extra-schedular subsection explains that it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 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. 38 C.F.R. § 4.16 (b). The Veteran is service connected for bilateral hearing loss rated noncompensable and tinnitus rated 10 percent disabling. With a combined overall 10 percent rating, the Veteran does not meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16 (a). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation Service for consideration of an extra-schedular rating under 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Director rendered an opinion regarding entitlement to extra-schedular TDIU under 38 C.F.R. § 4.16 (b) in November 2022 pursuant to prior Board remands. The Board now has jurisdiction to adjudicate TDIU under § 4.16 (b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Importantly, the Board can only consider the effects that the Veteran's service-connected disabilities have on his ability to secure and maintain employment. Therefore, the Board's analysis will focus solely on the occupational impact of the Veteran's hearing loss and tinnitus. In the Veteran's 2019 and 2021 TDIU applications, he lists his nonservice-connected stroke, PTSD, epilepsy, and spine as the disabilities that render him unemployable. He previously worked as a surgical instrument technician and in housekeeping/janitorial work in health care facilities. He does not have a high school diploma. He described his difficulty with memory and walking related to his strokes. The Veteran was found disabled by the Social Security Administration (SSA) as of 2006 due to disorders of the nervous system and anxiety-related disorders. By the Veteran's own report, he had been disabled since 2003 due to neck and spine disabilities, strokes, depression, and colon cancer. He had previously held employment doing janitorial work for several years. The SSA records do not mention any disability or occupational impairment related to hearing loss. A 2009 VA examination report noted significant effects on occupation. While the Veteran reported that his right ear was "ok," his left ear rang and throbbed which bothered him. He stated he cannot always hear what others are saying. In a 2011 VA examination report, the Veteran reported significant trouble hearing. He needed to look at faces to understand conversation and took a long time to process sound. However, only a mild to moderate loss of hearing was found. In a 2019 VA examination report, the examiner indicated that the functional impact of the Veteran's hearing loss required hearing aids as he had difficulty hearing in group settings and noisy environments. The examiner reported the Veteran's hearing loss as mild, high-frequency loss with good speech discrimination scores. The examiner found that the Veteran's tinnitus did not have any functional impact. A 2022 VA opinion found that the Veteran's hearing loss and tinnitus are mild conditions that have no impact on functioning. While the medical records reflect the diagnosed hearing loss requiring hearing aids, several of the records note normal or intact hearing, consistent with the 2011, 2019, and 2022 examiners' findings of mild hearing loss as well as audiology testing reflecting a degree of loss consistent with noncompensable ratings. A 2018 audiogram revealed moderate hearing loss. However, it was noted that there were inconsistent responses and delayed responses upon speech testing; therefore, it is unclear if the testing results were reliable. Upon careful review of the record, the Board finds that the Veteran's service-connected hearing loss and tinnitus do not preclude him from employment. First, the Veteran's own reports do not include hearing loss or tinnitus as one of the disabilities that render him unable to work. Rather, the Veteran's own statements as well as the medical records make clear that his inability to work is the result of nonservice-connected disabilities. Second, while the hearing loss and tinnitus would undoubtedly create challenges in the workplace, the medical records do not indicate occupational impairment to such a degree that he cannot maintain employment. To the contrary, the medical records consistently reflect a mild to, at most, moderate degree of hearing loss with little occupational or functional impact. While the 2009 report reflects significant impairment, there is no further elaboration, and this opinion is at odds with the overwhelming other evidence of record finding the opposite. Thus, this finding is afforded little probative weight. The 2019 VA opinion, while finding functional impact due to difficulty hearing others in group settings or noisy environments, does not find functional impact in less noisy or crowded environments. Third, while the Board acknowledges that the Veteran's hearing loss may preclude some forms of employment such as those requiring the Veteran to be in group settings or noisy environments referenced in the 2019 opinion, the evidence does not show that his hearing loss and tinnitus would preclude employment in a more quiet and solitary setting. For example, the Veteran has past work experience in janitorial work, which could provide a quiet and solitary environment. There is no evidence of record showing or suggesting that his level of hearing loss and tinnitus render him unable to perform this type of work, which would be consistent with his experience and education level. (Continued on the next page) For the above reasons, the Board is unable to conclude that the Veteran is unable to secure and maintain employment by reason of his service-connected disabilities. Entitlement to a TDIU is denied. R. COSTELLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.