Citation Nr: 1307808 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 12-19 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to March 1946 and from September 1950 to May 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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). FINDINGS OF FACT 1. The Veteran's service-connected disabilities are bilateral hearing loss, rated at 60 percent; and tinnitus, rated at 10 percent. The combined evaluation for these disabilities is 60 percent, and they are of a common etiology. As such, the minimum schedular criteria for TDIU are met. 2. Resolving all reasonable doubt in the favor of the Veteran, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU, which constitutes a complete grant of that claim. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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; provided that, if there is only one such disability, this disability shall be ratable as 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. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). In this case, service connection is in effect for bilateral hearing loss, rated at 60 percent; and tinnitus, rated at 10 percent. The bilateral hearing loss and tinnitus are of a common etiology. Therefore, the schedular criteria for a TDIU have been met. Moreover, the Board finds that the probative and persuasive evidence reflects that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In this regard, the Veteran submitted a November 2010 letter from a private audiologist which states that the Veteran has a moderate to profound sensorineural hearing loss, bilaterally. The private audiologist opined that the Veteran's severe hearing loss and tinnitus have essentially rendered him unemployable. The private audiologist explained that the Veteran needs to avoid working in any environment in which there is noise, because it may exacerbate his hearing loss. It was further noted that he should avoid any environment which requires normal hearing or good speech understanding. These limitations would prevent verbal communication on a face-to-face basis, as well as by telephone. His condition would further pose a significant safety risk in any job involving transportation/driving or being around heavy or moving machinery. The Board recognizes that the record contains a June 2012 VA examination report which states that the Veteran's service-connected condition of hearing loss would not prevent him from work, as he could work in a sedentary position. It was noted that the Veteran retired from his job at Trans World Airlines (TWA) in 1986. The examiner further noted that the Veteran is not able to do physical work due to his medical problems, such as chronic kidney disease and coronary artery disease, and that he has no intention of working, as he is 88 year old. In sum, the examiner opined that the Veteran was capable of performing sedentary work. The Board also recognizes that the report of a September 2012 VA examination reflects that there is nothing related to the Veteran's hearing loss to preclude gainful employment. The examiner did not provide any rationale for the opinion stated. The Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board concludes that the September 2012 VA medical opinion is of limited probative value and is not sufficient to raise a reasonable doubt. With respect to the June 2012 medical opinion, the Board notes that it does not address the difficulty that the Veteran would experience working in noisy environments, having face-to-face communication, or having telephone communication, as described by the private audiologist. The examiner stated that the Veteran could perform sedentary work, but the Board finds that such sedentary work would necessarily require some face-to-face and/or telephone communication, which the private audiologist stated should be avoided. The June 2012 VA examiner did not specifically address why the Veteran's hearing loss and tinnitus would not preclude sedentary work. Instead, the examiner just stated that the Veteran's hearing loss would not prevent sedentary work. As such, the Board accords the June 2012 limited probative value. In sum, the Board finds that the November 2010 private audiologist's opinion is more probative regarding the issue of whether the Veteran's service-connected hearing loss and tinnitus render him unemployable. The private audiologist provided an opinion in favor of the claim and fully supported the stated opinion. The VA examiners did not support their negative opinions. Moreover, there is a December 2009 VA audiological opinion which states that the Veteran will have a very difficult time understanding conversational speech, which will become even worse in noise. This finding supports the November 2010 private audiologist's opinion. Finally, the Veteran's VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) reflects that he worked from 1952 to 1986 as a lead inspector for TWA. He reported completing four years of high school. Therefore, in light of the evidence noted above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unemployable due to his service-connected disabilities. For the foregoing reasons, the Board concludes that the record supports assignment of a TDIU. The Board has applied the benefit-of-the doubt doctrine in determining that the criteria for a TDIU are met. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 (2011); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs