Citation Nr: 1301025 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 11-09 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating higher than 80 percent for service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from November 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The Board notes that the April 2009 audiological examiner diagnosed the Veteran with constant bilateral tinnitus and found that tinnitus was as likely as not a symptom of his service-connected hearing loss. In consideration thereof, the Board finds that the issue of entitlement to service connection for tinnitus has been reasonably raised by the record. However, the issue has not been adjudicated by the RO and, consequently, the Board does not have jurisdiction over it. Therefore, it is REFERRED to the RO for appropriate action. The RO should also address a number of questions raised by the Veteran regarding survivors' benefits in his July 2012 statement. FINDINGS OF FACT 1. The Veteran demonstrated no worse than a Level IX hearing acuity in his service-connected right ear, and a Level XI hearing acuity in his service-connected left ear, on audiological evaluations conducted during the claim/appeal period. 2. The credible evidence shows that the Veteran has been unemployed since approximately 2008, with the exception of three days of employment in February 2010, and the highest education level attained by the Veteran was one-and-a-half years of college. 3. The Veteran reportedly has past relevant work experience as a busboy, security guard, and salesperson. 4. The Veteran is service-connected for bilateral hearing loss, rated as 80 percent disabling. He is not service connected for any other disability. 5. The Veteran is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 80 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, Diagnostic Code (DC) 6100 (2012). 2. The criteria for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). An error in VCAA notice should not be presumed prejudicial, and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Collectively, in notice letters sent in February 2009 and May 2010, the RO advised the Veteran of the evidence needed to substantiate his claims and described the types of information and evidence that he should submit in support of his claims. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his claims. Also, Dingess notice requirements were satisfied by way of the notice letters. Therefore, the RO satisfied VCAA notice requirements prior to the initial denial of the Veteran's claims. Moreover, the Veteran has been provided with copies of the above rating decisions, as well as the March 2011 SOC issued during the course of his claims/appeal, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered to reach the decisions. Regarding VA's statutory duty to assist in claims development, the RO afforded the Veteran with medical examinations and medical opinions have been obtained in connection with his claims. The examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's claims. The medical examiners had sufficient facts and data on which to base their opinions. Although the June 2010 VA audiological examiner did not have access to the claims file, VA records were reviewed. Moreover, the present level of disability is at issue in this case. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, both the April 2009 and June 2010 audiological examiners sufficiently addressed the functional effect of the Veteran's hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The April 2009 VA audiological examiner considered the Veteran's complaint that he had trouble hearing in both ears all the time and had trouble deciphering words, and the June 2010 examiner considered the Veteran's complaints of problems hearing and understanding speech at all times Both examiners provided a medical opinion regarding the effect of the Veteran's hearing loss on his usual occupation and daily activities. The June 2010 further determined that hearing loss should not significantly affect the Veteran's vocational potential or limit participation in most work activities with amplification and reasonable accommodations as specified in the Americans with Disabilities Act. For the foregoing reasons, the Board finds that the audiological examination reports are adequate for rating purposes. Although the Veteran wrote in a July 2012 statement that his hearing was "completely gone" and he was only able to hear "noise", his assertion is consistent with complaints of hearing difficulties reported at the VA audiological examinations. The Veteran has not alleged and it is not otherwise shown that there has been a material change in his condition since the June 2010 examination. Therefore, the Board finds that no further examination is needed. Also, pertinent treatment records adequately identified as relevant to the Veteran's claims have also been obtained to the extent possible, or otherwise submitted, and are associated with the record. There are no pertinent records found in the Veteran's Virtual VA folder that are not included in the physical claims file and previously considered by the RO. Additionally, there are lay statements of record that were submitted by the Veteran in support of his appeal. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Increased Evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran seeks entitlement to a disability rating higher than 80 percent for his service-connected bilateral hearing loss. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Service connection for bilateral hearing loss was established with a 30 percent disability rating effective May 31, 2007, in an October 2007 rating decision. The Veteran filed the current claim seeking an increased rating for his hearing loss disability in December 2008 and an increased rating of 80 percent was awarded effective January 30, 2009. The Veteran has since appealed the disability rating assigned. In connection with his claim/appeal, the Veteran underwent VA audiological examination in April 2009. At that time, the Veteran demonstrated pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 75 75 95 LEFT 55 60 100 110 Pure tone threshold averages were 73 for the right ear and 81 for the left ear. Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 22 percent in the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results reveal that the Veteran demonstrated Level VIII hearing acuity in the service-connected right ear (with a puretone threshold average of 73 dB and speech discrimination score of 48 percent) and a Level XI hearing acuity in the service-connected left ear (with puretone threshold average of 81 dB and speech discrimination score of 22 percent). Table VII (Diagnostic Code 6100) provides a 70 percent disability rating for the hearing impairment demonstrated at this examination. 38 C.F.R. § 4.85. The Veteran underwent further audiological examination in June 2010. On the VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 75 90 95 LEFT 55 60 100 105 Pure tone threshold averages were 78 for the right ear and 80 for the left ear. Speech audiometry revealed speech recognition ability of 46 percent in the right ear and of 38 percent in the left ear. Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results reveal that the Veteran demonstrated Level IX hearing acuity in the service-connected right ear (with a puretone threshold average of 78 dB and speech discrimination score of 46 percent) and a Level IX hearing acuity in the service-connected left ear (with puretone threshold average of 80 dB and speech discrimination score of 38 percent). Table VII (Diagnostic Code 6100) provides a 60 percent disability rating for the hearing impairment demonstrated at this examination. 38 C.F.R. § 4.85. In evaluating the claim above, the Board considered the April 2009 audiometric test results showing an exceptional pattern of hearing impairment in the left ear and, in accordance with 38 C.F.R. § 4.86, determined that the Roman numeral designation for the Veteran's hearing impairment under Table VI resulted in the higher numeral (i.e., XI) rather than Table VIa (i.e.,VII). The Board also considered the June 2010 audiometric test results showing an exceptional pattern of hearing impairment in the left ear and, in accordance with 38 C.F.R. § 4.86, determined that the Roman numeral designation for the Veteran's hearing impairment under Table VI resulted in the higher numeral (i.e., IX) rather than Table VIa (i.e., VII). No exceptional pattern of hearing impairment was shown for the right ear at either examination. Thus, based on audiometric results shown on VA medical examinations conducted during the course of this appeal, the Veteran is, at most, entitled to a 70 percent rating for his bilateral hearing loss during the claim/appeal period. Nonetheless, he is currently assigned an 80 percent rating. It appears that the RO considered the bone conduction thresholds at the April 2009 audiological evaluation, rather than air conduction thresholds, in awarding the 80 percent evaluation. Even if the Board were to resolve reasonable doubt in favor of the Veteran in granting the highest Roman numeral designated for each ear as demonstrated at the audiological examinations conducted during the period (i.e., IX for the right ear and XI for the left ear), the level of impairment shown amounts to no more than an 80 percent schedular rating. Therefore, a preponderance of the evidence weighs against the Veteran's claim throughout the time relevant to the current appeal. No staged rating is warranted. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a higher schedular evaluation for the Veteran's claimed bilateral hearing loss disability. The Board has further considered whether this claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. However, after comparing the manifestations and reported impairment of function of the Veteran's bilateral hearing loss to the rating and schedular criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned rating. There is no unusual or exceptional disability picture shown. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular ratings is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). III. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the 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. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the present case, the Veteran is service-connected for bilateral hearing loss, rated as 80 percent disabling. He is not service-connected for any other disability. Because the Veteran has one service-connected disability rated at 60 percent or higher (i.e., 80 percent), the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met. As the Veteran has met the threshold percentage requirements for a schedular TDIU, the Board must next determine whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, after review of the evidentiary record, to include pertinent medical and lay evidence, the Board finds that the preponderance of the evidence weighs such a finding for reasons explained below. Preliminarily, the Board notes that the Veteran has provided inconsistent statements regarding his work history, as well as the date when he allegedly became too disabled to work due to his hearing loss. On the May 2010 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) initially submitted, the Veteran stated that his hearing loss prevented him from securing or following any substantially gainful occupation. He also wrote that he last worked full time in 2007 at which time he became too disabled to work. He additionally stated that his last employment was from 2004 to 2007 as a security guard, and he had then worked 25 hours per week. He further indicated that he left his last job as a security guard because of his hearing loss disability and neither received nor expected to receive disability retirement benefits or workers compensation benefits. He further checked "No" when asked if he had tried to obtain employment since he had become too disabled to work. However, after having submitted the VA Form 21-8940 above, the Veteran provided another VA Form 21-8940 later the same month. Although he again wrote on that form that his hearing loss prevented him from securing or following any substantially gainful occupation, he then stated that he had last worked in June 2008, rather than 2007. He also noted that he had become too disabled to work in February 2010, rather than 2007. The Veteran further reported that he had previously worked as a busboy from December 1998 to January 2002, a security guard at two different companies from February 2004 to June 2008, and a salesperson at a painting company for three days in February 2010. He additionally wrote that his highest level of education was one-and-a-half years of college. As between the two versions of the VA Forms 21-8940 submitted by the Veteran in May 2010, the Board finds the latter submission to be more credible regarding the Veteran's reported work history. On the whole, the work history as reported at that time appears to be consistent with other evidence of record. For example, in a statement received by the Board in June 2008, the Veteran wrote that he was still working about fifty hours a week. Also, a December 2008 VA treatment note reveals that the Veteran had recently been terminated from his security job. This evidence provides support to the Veteran's assertion in the latter form that he worked until 2008, with the exception of brief employment in 2010, and is afforded great probative value in resolving the Veteran's work history. In turning to the question of whether the Veteran is unable to obtain or sustain gainful employment due to his service-connected hearing loss, the Board recognizes that the Veteran has stated that his employment as a salesperson at a painting company in February 2010 was terminated due to his hearing loss. Indeed, his assertion is supported in the record. The Veteran's former employer or supervisor at the painting company completed a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) in May 2010. He wrote that the Veteran worked eight hours per day for only three days in February 2010 as a painter and salesperson but his employment was terminated because of the constant need to repeat things and the Veteran's inability to perform the work due to hearing loss despite his wearing hearing aids in both ears. However, regarding the Veteran's assertion that he became too disabled to work as a security guard due to his hearing loss disability (on the former May 2010 VA Form 21-8940), the Board notes that it is not consistent with other evidence of record. The December 2008 VA treatment note referenced above reveals that the Veteran's caretaker, who was present at the appointment with the Veteran, told his treating physician that the Veteran had been terminated from his position as a security guard due to falling asleep on the job. There was absolutely no mention of hearing problems resulting in his termination at that time. As the statement made in 2008 was contemporaneous to the Veteran's termination of employment as a security guard, it is deemed far more credible and of greater probative value than the assertion that his termination was due to hearing loss disability first made more than a year after the occurrence of the event. The Veteran's treatment records show that he has memory problems. See, e.g., VA pulmonary outpatient consult note dated in January 2009 (noting a past medical history of mild dementia and an assessment of memory loss). Additionally, the Board observes that the Veteran has provided inconsistent statements as to the reasons why he believes that he is unable to obtain or maintain substantially gainful employment during the course of this appeal. As noted above, the Veteran stated on the May 2010 VA Forms 21-8940 that his service-connected hearing loss prevented him from securing or following any substantially gainful occupation. In a July 2011 statement, he reiterated that no one wanted to hire him because of his hearing difficulties. However, he told a VA employee in November 2010 that it was his back and knee disabilities combined with his service-connected hearing loss that prevented him from maintaining gainful employment. See November 2010 Report of General Information. The Veteran is not service-connected for a knee or back disability. Although he filed a claim for service connection of a bilateral knee disability during the course of this appeal, the RO denied the claim in a September 2012 rating decision. The Veteran has never filed a claim for service-connection of a back disability. Thus, the Veteran's November 2010 statement suggests that he believes that it is the combined effect of his service-connected and nonservice-connected disabilities that prevents him from obtaining and/or sustaining gainful employment. Nonservice-connected disabilities are not to be considered when determining whether a TDIU is warranted. See Van Hoose, 4 Vet. App. at 363. Furthermore, the Veteran's assertion that he is rendered unemployable due to his hearing loss disability is contrary to the competent medical opinion evidence of record. The June 2010 VA audiological examiner considered the Veteran's complaints, as well as the audiometric results shown on examination, and ultimately concluded that the Veteran was not unemployable due to hearing loss disability. The examiner acknowledged that it could be expected that the Veteran's hearing loss may result in some difficulty understanding speech in difficult listening situations, like in the presence of background noise, when he was unable to see the speakers' faces, or over the phone. However, the examiner determined that hearing loss should not significantly affect vocational potential or limit participation in most work activities with amplification and reasonable accommodations as specified in the Americans with Disabilities Act. As the June 2010 audiological examiner has medical training in auditory matters, had adequate data on which to base her opinion, and provided adequate rationale for the opinion, the Board affords the medical opinion great probative value. Furthermore, there is no medical opinion to the contrary of record. While the Veteran has asserted that his hearing loss disability prevents him from securing or following substantially gainful employment, he is a lay person and does not have the requisite medical expertise to render a competent medical opinion regarding his claimed unemployability. He has further provided inconsistent statements in this regard, as explained above. For these reasons, his opinion is afforded no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, in consideration of the above, the Board finds that the most probative evidence of record does not show that the Veteran is unable to engage in gainful employment due to his service-connected disability. Consequently, the Board finds that a preponderance of the evidence weighs against the Veteran's claim, and entitlement to a TDIU is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Because the preponderance of the evidence, however, is against the claim, that doctrine is not applicable. ORDER A disability rating greater than 80 percent for service-connected bilateral hearing loss is denied. A TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs