Citation Nr: 1305992 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 12-19 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1951 to January 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied a TDIU. Please note 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). FINDING OF FACT The Veteran is rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected hearing loss and tinnitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the favorable disposition herein, no conceivable prejudice to the Veteran could result from this decision, and, thus, no discussion of compliance with the VCAA is necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with 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. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 36. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). TDIU Analysis In this case, the Veteran contends that he is unable to secure employment due to his service-connected hearing loss and tinnitus. Specifically, the Veteran states that his hearing loss and tinnitus makes it difficult for him to concentrate and impairs his ability to communicate with others. The Veteran is currently service-connected for hearing loss, evaluated as 70 percent disabling from January 6, 2010, and for tinnitus, evaluated as 10 percent disabling from October 5, 2006. The Veteran has a combined disability rating of 70 percent, effective January 6, 2010. Thus, the Veteran meets the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU, and entitlement to a TDIU is considered on a schedular basis. 38 C.F.R. § 4.16(a). After a review of all the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected hearing loss and tinnitus. Weighing against the Veteran's claim for a TDIU is the June 2012 VA examination. During the examination, the Veteran reported that his hearing loss and tinnitus makes it difficult to concentrate. He also expressed difficulty hearing people from a distance and understanding what people were saying. The Veteran reported that he retired in 1994 because "it was just time." Since that time, the Veteran stated that he worked as a greeter and that his employer would make comments about him not being able to hear and understand what people were saying. According to the Veteran, his hearing loss disability was the main reason he lost his job. The June 2012 VA examiner noted that the Veteran currently wears hearing aids. The examiner stated that even with hearing aids it is difficult for individuals with hearing loss to hear at a distance and to understand everything that is being said. Although the examiner noted that this limitation, by itself, does not render someone unemployable, it does increase the need for knowledge of the American with Disabilities Act (ADA) and the accommodations that are necessary. The examiner opined that with amplification and reasonable accommodations as specified in the ADA, the Veteran's hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. According to the examiner, employment would be more than feasible in a loosely supervised situation. In support of his claim for a TDIU, the Veteran submitted a February 2011 opinion from Dr. K.S., a private audiologist. Dr. K.S. reviewed the Veteran's service records, discussed the Veteran's service, employment history, communicative history, and conducted a Maryland CNC Word List test. During the examination, the Veteran reported that conversations on the telephone were especially difficult. The Veteran stated that he had difficulty understanding the television or radio unless the volume is significantly increased. Dr. K.S. stated that, in her professional opinion, the Veteran's hearing loss and tinnitus have essentially rendered the Veteran "unemployable." According to Dr. K.S., the Veteran "needs to avoid working in any environment in which there is any noise, which may exacerbate his hearing loss." Dr. K.S. stated that the Veteran's hearing loss and tinnitus would prevent verbal communication face-to-face as well as by telephone. Importantly, the doctor noted that the Veteran's condition would "pose a significant safety risk in any job setting involving transportation/driving or being around heavy or moving machinery." Finally, the doctor concluded that the Veteran's service-connected hearing loss would significantly impair his employability in most job assignments with or without adaptation. The Board finds that opinion probative as it was based on a review of the service records and a history of the Veteran's work history. The examiner discussed the Veteran's symptoms and the effect of his service-connected disabilities on his ability to work. The examiner is shown to be qualified to render the opinion. The record also includes the report of the February 2010 VA audiological examination. After conducting audiological testing, the VA examiner diagnosed the Veteran with bilateral hearing loss and constant, bilateral tinnitus. Regarding the effects of the hearing disability on the Veteran's occupational and daily activities, the examiner opined that the Veteran's hearing loss causes "communication problems" and a need for hearing aids. Additionally, the examiner stated that the tinnitus was "annoying." Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to secure gainful employment due to his service-connected hearing loss and tinnitus. Although the June 2012 VA examiner opined that the Veteran was employable, Dr. K.S. stated that the Veteran was unemployable and further opined that the Veteran's hearing loss would significantly impair his employability in most job assignments. Further, the February 2010 VA examiner opined that the Veteran's hearing loss caused communication problems which would affect the Veteran's usual occupation. The Board has also considered the Veteran and his representative's statements regarding the difficulty the Veteran encounters due to his hearing loss and tinnitus (difficulty concentrating, hearing and understanding individuals on the telephone and face-to-face). The Veteran's statements as to the effects of his disabilities on his employability to be competent and credible. The record also includes the TDIU application form submitted by the Veteran that indicated he worked from 1977 to 1994 in cooling maintenance. The DD Form 214 indicates that he completed the 8th grade but did not complete high school or college. After a review of the entire record and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs