Citation Nr: 1309329 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 99-08 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from December 1949 to December 1953 and from November 1954 to March 1973. This matter is before the Board of Veterans' Appeals (Board) originally on appeal from a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that denied increased disability ratings for bilateral hearing loss, residual burn scars of the back, posterior right arm, and posterior neck, and skull fracture with residuals of cognitive disorder. In his Appeal to Board of Veterans' Appeals (VA Form 9), received in May 1999, the Veteran requested a personal hearing over which a Veterans Law Judge of the Board would have presided while at the RO. However, in a memorandum dated in July 1999, the Veteran's accredited representative notified the RO that the Veteran wished to cancel his personal hearing. This matter was previously before the Board in September 2000 and November 2003, wherein it was remanded for additional development. Thereafter, in November 2005, the Board, in pertinent part, denied increased disability ratings for the disabilities then at issue in this appeal, and the Veteran appealed the issues of increased rating for bilateral hearing loss and residuals of a skull fracture. In a January 2008 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's November 2005 decision with respect to the issues then on appeal and remanded the appeal to the Board for further proceedings consistent with that decision. In September 2008, the Board remanded the claims for additional development. In July 2010, the Board denied the claim for increased rating for bilateral hearing loss but subsequently noted the Veteran's assertion that he was incapable of obtaining employment due to his service-connected bilateral hearing loss disability. The Board found that a claim of TDIU had been properly raised as part of the claim for an increased rating for bilateral hearing loss, see Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the TDIU claim for further development. By way of an October 2010 supplemental statement of the case, the RO denied a TDIU rating. The Board again remanded the claim for TDIU in March 2011. Additionally in March 2011, the Board granted a 10 percent rating prior to November 26, 2008 for the Veteran's increased rating claim for residuals of a skull fracture, and continued the 10 percent rating for residuals of a skull fracture since November 26, 2008. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). FINDINGS OF FACT 1. The Veteran's service-connected hearing loss, tinnitus, and skull fracture with cognitive disorder resulted from common etiology, and are considered a single 50 percent disability rating. The Veteran's residual burn scars of the back and right arm and residuals of a burn scar of the posterior neck resulted from a single accident and are considered a single 20 percent disability. These disabilities combine to an overall 60 percent rating. 2. The Veteran has work experience as a sales manager, a shipping/receiving manager, an upholstery warehouse manager, a correctional officer, and a mail handler in the post office; he has four years of a high school education. 3. The weight of the competent and probative evidence indicates that the impairment caused by the Veteran's service-connected disabilities does not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2010 letter issued prior to the October 2010 adjudication of the TDIU claim, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2010 supplemental statement of the case also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Although the October 2010 notification was issued after the adjudication on appeal, the Veteran's case was subsequently readjudicated as evidenced by the December 2012 supplemental statement of the case, and he had the opportunity to submit additional argument and evidence. Therefore, the content timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, and the Veteran's statements. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included having the RO adjudicate the claim for a TDIU and scheduling the Veteran for a VA examination for a TDIU opinion. In response, the RO/AMC adjudicated the Veteran's TDIU claim in an October 2010 supplemental statement of the case. The RO/AMC also scheduled the Veteran for June 2011 and June 2012 VA audiological examinations, a June 2012 VA head injury examination, a June 2012 VA scars examination, and a December 2012 VA traumatic brain injury examination. Additionally, the RO/AMC obtained VA addendum opinions dated in July 2012, August 2012, and September 2012. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings 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, provided that, if there is only one such disability, the disability shall be ratable at 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 (2012). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2012). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(2). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, neither the veteran's nonservice-connected disabilities nor advancing age may be considered. In this case, the Veteran is service connected for bilateral hearing loss, rated as 40 percent disabling; tinnitus, rated as 10 percent disabling; skull fracture with cognitive disorder, rated as 10 percent disabling; residual burn scars of the back and posterior right arm, rated as 10 percent disabling; and residuals of a burn scar of the posterior neck, rated as 10 percent disabling. The Veteran's hearing loss, tinnitus, and skull fracture with cognitive disorder resulted from common etiology, e.g. an in-service head injury, and are considered a single 50 percent disability rating. See 38 C.F.R. §§ 4.16(a), 4.25, Table I, Combined Ratings Table (2012). The Veteran's residual burn scars of the back and right arm and residuals of a burn scar of the posterior neck resulted from a single in-service burn accident and are considered a single 20 percent disability rating. See 38 C.F.R. §§ 4.16(a), 4.25. The overall combined disability rating is 60 percent. 38 C.F.R. § 4.25. The Veteran does not currently meet the percentage criteria laid out in 38 C.F.R. § 4.16(a) (2012). That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based upon individual unemployability on an extraschedular basis. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's DD Form 214 indicates that he has a high school diploma. Regarding his work history, the Veteran established at a November 2008 VA audiological examination and at a June 2012 VA residuals of a head injury examination that he has work experience in being a sales manager, a shipping/receiving manager, an upholstery warehouse manager, a correctional officer, and a mail handler in the post office. He reports that he retired in 1993 to take care of his wife when she was diagnosed with multiple sclerosis. The Veteran underwent VA brain and spinal cord and skin examinations in March 1999 to assess his residual burns of the back, right arm, and neck. Neurological examination was normal. There was no evidence of any neurologic residual of a skull fracture or burn. An MRI of the skull revealed calcification within the pineal gland and erosive changes of the maxilla from poor dentition, but was otherwise normal. The Veteran had a diffuse, hyperpigmented scaly rash over the entire back and upper buttocks consistent with an old third-degree burn. He also had some hypertrophic hyperpigmented changes in the center of his low back and on the upper portion of the buttocks that were somewhat raised. On VA audiological examination in April 1999, the Veteran reported that he was hard of hearing, worse in the left ear than the right ear. He complained of constant bilateral tinnitus that began about 6 years ago. He stated that it was somewhat bothersome and did interfere at times with his sleep. The Veteran was found to have mild to moderately severe sensorineural hearing loss at 3000 Hz and above in the right ear and profound sensorineural hearing loss in the left ear. At a November 1999 VA scars examination, the Veteran had change in the appearance of the skin on his back and both flanks. His skin had a mottled appearance with areas of hypopigmentation scattered throughout. The texture over that area was slightly rough, but not indurated. There was also a single 3 to 4 mm area of scarring in the upper back. The Veteran also had an area in his upper lumbar midline that contained a number of slightly elevated papules and patches that were hyperpigmented. A January 2001 VA neurological examination revealed that the Veteran had total sensorineural hearing loss on the left side that was most likely due to the skull fracture he had sustained during service. The examiner found no other neurological problems of note otherwise. In February 2001, the VA examiner again found that the neurological examination of the Veteran was normal except for his hearing loss. Although the Veteran reported that he had on and off global headaches that were dull and often accompanied with nonspecific paroxysms of pain that were relieved by pain killers, the examiner found that the headaches were routine tension headaches instead of being secondary to the Veteran's service-connected skull fracture. On VA skin examination in February 2001, the Veteran described very little disability related to his skin aside from flare-ups of itching that occurred twice a year and lasted for approximately one month. He indicated that the itching was relieved by topical steroidal creams. He denied any limited range of motion due to his minimal burn scarring. He had not had recurrent skin infections and did not complain of any pain related to his scars. Examination revealed barely noticeable hyperpigmentation distributed over the lower part of the posterior neck, the entire back, most of the shoulders, half of the lateral flanks, and 25 to 50 percent of the posterior arms. There was no detectable limited range of motion, and the rash did not appear to be inflamed or painful. The examiner found no disability related to the Veteran's second-degree burns. He explained that they seemed to have been adequately treated at the time. The examiner stated that the Veteran's only skin disability would be that of mildly to moderately severe pruritis. In a June 2001 VA addendum opinion, the examiner clarified that the Veteran had absolutely no functional impairment. He had full range of motion with no restriction of movement due to the skin burns. The examiner explained that the level of severity of the burns was such that it had been hard for him to notice at first where the Veteran had been burned. Upon very close inspection, the examiner had found very well-healed residuals of second-degree burns manifested basically only as some thickness of the skin over the areas where the Veteran had been burned. At a November 2001 VA audiological examination, the Veteran reported total hearing loss in the left ear and some hearing loss in the right ear. He indicated that he did not use the telephone or the television due to his inability to hear. The examiner found that in the right ear, the Veteran had normal hearing through 2000 Hz and a mild to moderate high-frequency sensorineural hearing loss. In the left ear, there was profound hearing loss with no measurable hearing at the limits of the audiometer. On VA audiological examination in June 2003, the Veteran's hearing was found to have not changed since his November 2001 VA examination. The case history had no changes either with the exception of the Veteran's complaint of an increase in the loudness of the tinnitus. At a November 2008 VA audiological examination, the Veteran complained that he could not pinpoint where sound was coming from. He reported wearing hearing aids on a full-time basis. He indicated that when wearing his hearing aids, the functional effect of his hearing loss was difficulty in localizing sounds. The Veteran stated that he was currently retired but maintained that he would work if he could get a job. He felt that his hearing loss was the reason he could not get hired even though he had worked for many years after he had acquired his hearing loss. He reported that after discharge from service, he had worked as a sales manager and shipping/receiving manager for Sears, as an upholstery warehouse manager, and as a mail handler in the post office. The Veteran was diagnosed with right mild to moderately severe sensorineural hearing loss above 1500 Hz and left profound hearing loss. The functional effect of his hearing loss was noted to be difficulty in localizing sounds. On VA brain and spinal cord examination in April 2009, the Veteran complained of having ongoing daily headaches since his in-service skull fracture. He reported that these headaches were disabling and caused him to go to bed. He continued daily activity by taking over-the-counter medication. He stated that he did not wear a hearing aid in his left ear because he had been told that it would not correct his total hearing loss. However, he did wear a hearing aid in the right ear and was able to communicate during intervals without problems. He indicated that his bilateral ringing in the ears had not changed since 1964 and that his hearing aid had no effect on his ringing. He also complained of pain in the legs from the lower buttocks to the calf region that occurred when walking. Neurological examination was normal except for knee reflex was hyperactive and abdominal 1+, bilaterally. The Veteran was diagnosed with skull fracture, headache, hearing loss, tinnitus, and leg pain. The examiner found that these disabilities had no significant occupational effects. She also noted that the leg pain and headaches were not due to the skull fracture. On VA audiological examination in June 2011, the examiner reviewed the Veteran's entire claims file, obtained a medical history from the Veteran, and performed a physical examination, which included audiometric testing and speech recognition performance. The examiner found that the Veteran had no residual hearing in the left ear and described the hearing loss in the Veteran's right ear as being mild to moderately severe with a 96 percent word recognition score. The Veteran was also noted to have tinnitus in both ears that was intermittent and more noticed in a noisy environment. The examiner opined that the Veteran's hearing loss would interfere with his ability to understand conversational speech in a noisy environment, as well as with his ability to understand speech on his left side. He also determined that the Veteran would have difficulty localizing speech in noise, which may pose a safety issue when working in a setting that required emergency signals to be heard at all times. The examiner found that the Veteran's tinnitus did not render him unable to secure and maintain substantially gainful employment. However, due to the severity of the Veteran's hearing loss and the aforementioned safety concerns, the examiner concluded that the Veteran's hearing loss rendered him unable to secure and maintain substantially gainful employment. At a June 2012 VA audiological examination, the Veteran again underwent audiometric testing and speech recognition performance. The examiner reviewed the Veteran's entire claims file. Regarding the Veteran's bilateral hearing loss, the examiner found that it impacted the ordinary conditions of his daily life, including the ability to work, by causing him to have significant difficulty in communicating with others. The examiner noted that the June 2011 VA examiner had already recommended the Veteran for unemployability based on his hearing loss. The June 2012 examiner indicated that she concurred with the June 2011 VA opinion. She explained that it would be extremely difficult for the Veteran to obtain and maintain gainful employment, as his hearing loss significantly impacted his ability to interact with others. She also noted that it would be difficult for the Veteran to localize sound due to his profound left ear hearing loss. In a July 2012 VA addendum, the examiner reiterated that she had reviewed the entire claims file. On VA head injury examination in June 2012, the examiner noted that after discharge from service, the Veteran had worked as a clerk for Sears, as a correction officer, and as a post office worker. The Veteran reported that he did very well in all of these occupations. He stated that he had retired in 1993 because his wife suffered from multiple sclerosis and he had to take care of her. The examiner noted that the Veteran did not complain of headaches during service in the first few weeks after his head injury. The Veteran complained of currently suffering from some mild headaches about once a week of bitemporal location. He took aspirin for his headaches but mostly ignored them. He reported that they were not prostrating and lasted for 1 hour to 1 1/2 hours. He stated that loud sounds currently bothered his headaches. He denied any intellectual deficits. The examiner noted that the Veteran had total hearing loss in the left ear and used a hearing aid in his right ear. The Veteran denied ever having epileptic seizures. He had previously undergone an operation for prostate and bladder cancer, but had no problems with bowel movements. Examination revealed that the Veteran was well-oriented and could walk without difficulty. He had good strength and dexterity in the upper and lower extremities. Deep tendon reflexes were 2+ and symmetrical in the upper and lower extremities. Pupils were equal and reactive to light, and extraocular movements and visual fields were normal. The Veteran was noted to be able to hear very well and have a normal conversation with his hearing aid in the right ear. The neurological examination was otherwise normal. The examiner found that the Veteran had no residuals of the skull fracture and no cognitive deficits. He therefore concluded that the Veteran's head injury did not render him unable to secure or follow a substantially gainful occupation. The examiner also noted that the left ear hearing loss was most likely due to the skull fracture suffered in 1964, but the mild tension headaches were of unclear relation to the in-service skull fracture. In a September 2012 VA addendum opinion, the examiner indicated that he had reviewed the entire claims file. He reiterated that the Veteran's mild tension headaches were less likely than not linked to the head injury in 1964. At a June 2012 VA scars examination, the Veteran was noted to have residuals of second and third degree burns on his back, neck, arms, and flank. The Veteran reported occasional pruritis on his back but denied any other related problems. Examination revealed that the burn scars were not painful or unstable. The burn scars on the back were described to be of full thickness or sub-dermal. There was a superficial non-linear scar on the right upper extremity that was 30 cm X 15 cm in area. The left upper extremity also contained a superficial non-linear scar that was 30 cm X 15 cm in area, but the examiner described it to be faintly visible and difficult to determine where it started and ended. The posterior trunk contained a superficial non-linear scar that was 50 cm X 50 cm in area and was also described as faintly visible and difficult to determine where it started and ended. The examiner found that the Veteran's burn scars had no effect on his ability to perform physical or sedentary duties. In an August 2012 VA addendum opinion, the examiner reviewed the entire claims file and provided more details about the burn scar on the Veteran's neck. The posterior neck burn scars were noted to be barely visible and difficult to determine the borders. There was very mild hyperpigmentation to an area covering 15 cm X 6 cm in the lower posterior neck. The scar was asymptomatic, flat, and non-adherent to underlying tissue. There was no limitation of function caused by the scar, and the skin was intact with no evidence of breakdown or drainage. On VA traumatic brain injury examination in December 2012, the Veteran was noted to have had a traumatic brain injury in 1964. The Veteran indicated that he had a scar in the scalp as a residual of the injury. He also had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Mental status examination was normal, adjusting for the Veteran's age. The Veteran was always oriented to person, time, place, and situation. He had normal judgment, motor activity, visual spatial orientation, and consciousness. Social interaction was routinely appropriate, and there were no neurobehavioral effects. The Veteran reported subjective symptoms of mild or occasional headaches and mild anxiety, but these symptoms did not interfere with work, instrumental activities of daily living, family, or close relationships. He was able to communicate by spoken and written language and to comprehend spoken and written language. The examiner noted that the Veteran had hearing loss and tinnitus that were attributable to a traumatic brain injury. The Veteran also had a scar related to his traumatic brain injury, but it was not painful, unstable, or larger than 39 square centimeters in area. A February 2009 CT scan of the head revealed a normal brain. The examiner noted that the Veteran had been retired for a long time. He found that the Veteran's headaches were not related to service and did not affect his life. Based on the foregoing evidence, the Board finds that the Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. The April 2009 VA brain and spinal cord examiner found that the Veteran's skull fracture, hearing loss, and tinnitus did not have significant occupational effects. Similarly, a June 2012 VA head injury examiner found that the Veteran's head injury did not render him unable to secure or follow a substantially gainful occupation because he had no residuals of the skull fracture or cognitive deficits. Moreover, a June 2012 VA scars examiner found that the Veteran's burn scars had no effect on his ability to perform physical or sedentary duties. Indeed, the Veteran's burn scars were noted to be only faintly visible and difficult to determine the borders. Finally, a June 2011 VA audiological examiner also determined that the Veteran's tinnitus would not render him unable to secure and maintain substantially gainful employment. The Board acknowledges that the June 2011 and June 2012 VA audiological examiners found that the Veteran's hearing loss rendered him unemployable. However, the June 2011 opinion was based on the rationale that the hearing loss would interfere with the Veteran's ability to understand conversational speech in a noisy environment and that the Veteran's difficulty in localizing speech in noise could pose a safety issue when working in a setting that required emergency signals to be heard at all times. The evidence indicates that the Veteran has not worked primarily in occupations that would require emergency signals to be heard at all times or that would be heavily reliant on his ability to localize speech in a noisy environment. Indeed, the Veteran has work experience as a sales manager in a department store and also successfully worked as a mail handler in a post office for many years despite already having hearing loss. The record shows that the Veteran did not retire from his job at the post office due to his hearing loss disability, but rather, he retired in order to take care of his wife. Additionally, although the June 2012 VA opinion indicated that the Veteran would have difficulty communicating and interacting with others, during a June 2012 VA head injury examination, the Veteran was noted to be able to hear very well and have a normal conversation with his hearing aid in the right ear. Further, a December 2012 VA traumatic brain injury examination revealed that the Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. The Board places greater probative weight on the medical opinions concerning the Veteran's employment capability than the Veteran's lay contentions as to the limitations caused by his disabilities. Thus, given the Veteran's ability to communicate by spoken and written language, as well as his occupational history of successfully working in fields where emergency signals did not need to be heard at all times or where his ability to localize speech in a noisy environment was not required, the weight of the competent, probative evidence indicates that the Veteran has not been prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. Again, the issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose, 4 Vet. App. at 363. The evidence does not show that he cannot perform the acts required by employment due to his service-connected disabilities. The Veteran has a past work history which demonstrates he was capable of performing a variety of work-related tasks, including managerial and supervisory. There is no probative evidence that his service-connected disabilities would prevent him from performing the duties of his prior jobs. While VA examiners have stated that the Veteran's hearing loss causes the Veteran to be unemployable, they have qualified their opinion by indicating that the Veteran would have problems localizing speech in noise, which may pose a safety issue when working in a setting that required emergency signals to be heard at all times. Analyzing the opinion as a whole indicates that the examiner has not ruled out all forms of employment due to the Veteran's service-connected hearing loss, only those positions in which the Veteran's hearing loss would cause a safety issue. The Board also notes that a VA examiner in June 2012 stated that the Veteran's hearing loss impacted the Veteran's ability to work because it caused him to have significant difficulty in communicating with others. The Board notes that while the Veteran may have difficulty communicating with others in nosey settings, the evidence has consistently showed that he is nonetheless able to communicate with others. The Veteran was found to be able to communicate in writing and verbally. The evidence shows that the Veteran's wears a hearing aid in the right ear and that he was able to communicate with each examiner on the numerous VA examinations he was given. Specifically, he was able to address the examiner's questions. This is consistent with the speech recognition scores found upon testing of his right ear. The probative evidence of record shows that the Veteran is capable of performing the acts required in obtaining and maintaining a substantially gainful occupation. In fact, the Veteran himself has indicated that he would work if he could find a job. Unfortunately, the fact that a Veteran is currently not working or may have difficulty finding a job is not determinative in adjudicating a claim for a TDIU rating. As previously stated, the evidence does not show that the Veteran's service-connected disabilities makes him incapable of performing the physical and mental acts required by employment. Thus, referral for extraschedular consideration for entitlement to TDIU is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim for a TDIU rating. Consequently, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs