Army Veteran Wins $239,000 via Extraschedular TDIU Rating for Hearing Loss

M.J. came to Friedman Disability in 2014 after filing an appeal with the Board of Veterans’ Appeals (Board) and receiving a new rating decision that granted him only a 20 percent schedular disability rating for his bilateral hearing loss and a 10 percent schedular disability rating for his tinnitus.

The Board found that both M.J.’s tinnitus and bilateral hearing loss were caused by his four years of service in the United States Army. The VA only assigned M.J. a 20 percent schedular disability rating for his bilateral hearing loss even though M.J.’s inability to hear forklift horns was a safety risk that led to the loss of his job in 2007. The rating decision also relied solely on two hearing tests conducted by the VA, disregarding other clinically-administered tests that showed the full extent of M.J.’s hearing loss, including a 2007 test conducted by the VA itself that had been scanned into the wrong folder in M.J.’s claims file.

At the time of his appeal to the Board and the VA’s subsequent rating decision, M.J. had not worked since 2009 and was collecting Social Security disability benefits based on his unemployability. M.J. had thus raised an inferred, informal claim for a TDIU rating (total disability rating based on individual unemployability). This was acknowledged by the Board, but the Regional Office (RO) failed to consider M.J.’s claim for a TDIU rating in issuing the subsequent rating decision, despite having been expressly instructed to do so by the Board.

By pulling together records from the Social Security Administration (SSA), letters from M.J’s previous employer, VA treatment records that the VA itself had overlooked, and medical treatment records from his private treating otorhinolaryngologists (ENTs), Friedman Disability was able to convincingly show that M.J.’s case warranted a TDIU rating in line with the fully favorable Social Security disability decision he had previously received.

As a result, the RO initially granted M.J. a TDIU rating but only assigned him an effective date of March 2017, the date his hearing loss met the schedular requirements for a TDIU rating under 38 CFR § 4.16(a). Because this effective date was approximately eight years later than when M.J.’s service-connected bilateral hearing loss began to prevent him from following any substantially gainful occupation (SGO), Friedman Disability filed another Notice of Disagreement (NOD) on M.J.’s behalf, requesting that the VA assign him a TDIU rating effective 2009 on an extraschedular basis pursuant to 38 CFR § 4.16(b).

In 2018, the Director of the Compensation and Pension Service at the VA Central Office, which reviews all extraschedular TDIU claims, granted M.J.’s claim for a TDIU rating effective 2009, resulting in an award of past-due benefits totaling more than $239,000.