Citation Nr: 1320930 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 11-13 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from April 1945 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim for TDIU. A statement of the case (SOC) was issued in May 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in May 2011. 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 is service connected for bilateral hearing loss, which is evaluated as 80 percent disabling. This is the only disability for which service connection is in effect. 2. The most probative medical evidence of record indicates that the Veteran's service connected bilateral hearing loss prevents him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(3), 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the Board's decision herein to grant a TDIU rating is a full grant of the benefits sought on appeal, no further action is required to comply with the VCAA. II. Factual Background and Analysis The Veteran essentially contends that he is no longer employable due to his service-connected bilateral hearing loss disability. Notably, hearing loss is the only disability for which service connection is in effect; it is evaluated as 80 percent disabling. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or 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). In addition, there are circumstances under which disabilities may be combined and yet still be considered one disability and therefore requiring only a 60 percent rating: (1) Disabilities of one or both upper extremities, or 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, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a)(4). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The record reflects that the Veteran has a 7th grade education; he did not attend high school, nor does he have any additional education or training. See December 2009, VA Form 21-8940. He indicated on his claim for benefits that he last worked as a restaurant owner from1980 to 1986. In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is service connected for one disability, namely, bilateral hearing loss. It is evaluated as 80 percent disabling. Thus, the Veteran's service-connected disability meets the criteria for schedular consideration of TDIU. 38 C.F.R. § 4.16(a). Having determined that the Veteran meets the percentage threshold requirements, the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation as a result of such service-connected disability. For reasons stated below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected hearing loss renders him unable to secure and follow a substantially gainful occupation. The Board acknowledges that there are conflicting opinions of record, as to the effect of the Veteran's service-connected hearing loss, on his ability to maintain employment. In support of his claim, he submitted two letters from a private audiologists, T.K. (May 2010), and K.S. (August 2011). In addition, there are several reports of VA examination. On VA audiological examination in December 2009, the Veteran was diagnosed as having moderate to profound bilateral hearing loss, with speech recognition scores of 20 percent in the right ear and 39 percent in the left ear. The examiner did not provide an employability opinion, but did note that the Veteran's hearing loss had "significant" effects on occupation and occupational activities. The examiner cited decreased concentration, poor social interactions, difficulty following instructions, and hearing difficulty. In a letter dated in May 2010, T.K. indicated that pure tone audiometry revealed that the Veteran had severe to profound hearing loss in both ears; speech discrimination scores (Maryland CNC) presented at 100 dBHL in each ear and were poor at 36 percent in the right ear and 24 percent in the left ear. T.K. stated that the Veteran had difficulty communicating in all listening situations. She further opined that his severe hearing loss has "essentially rendered him unemployable." She explained that the Veteran needed to avoid working in an environment where there was any noise, which may exacerbate his hearing loss. Such limitations, she noted, would prevent verbal communication face-to-face, as well as by telephone. Additionally, his hearing loss would pose a significant safety risk in any job setting involving transportation/driving, or being around heavy or moving equipment. T.K. concluded by noting that his "service-connected hearing loss would significantly impair his employability in most job assignment with or without adaptation." On VA audiological examination in November 2011 (without contemporaneous examination of the Veteran), the examiner opined that the Veteran's hearing loss, alone, should not be a barrier to a wide range of employment settings. The examiner stated that many individuals with the Veteran's degree of hearing loss functioned well in many occupational settings; however, she acknowledged that the Veteran "may have trouble working in environments which required hearing...and which required him to use non face-to-face communications equipment...or in jobs which required a great deal of attention to any sounds." The examiner did not address the May 2010 private audiology opinion, but stated that the functional impairments described in the December 2009 VA examination "should have no impact on his physical and sedentary employment options." The examiner also noted that "with amplification and reasonable accommodations...this hearing loss alone should not significantly affect vocational potential or limit participation in most work activities." In a letter dated in August 2011, K.S. indicated that Veteran had difficulties with speech understanding in one-on-one conversations; difficulty with phone conversations and difficulty in background noise and while listening to distant speakers. She noted that the Veteran wore hearing aids on a regular basis, but his speech discrimination scores were very poor "even with the use of the devices unless he is facing the person, he can't understand any of the conversation." She opined that the Veteran's hearing loss (and tinnitus) essentially rendered him unemployable. The medical opinions outlined above are conflicting as to whether the Veteran's service-connected hearing loss have rendered him unable to obtain or maintain gainful employment. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). With respect to the unfavorable November 2010 VA opinion, the Board finds it noteworthy that, in rendering her opinion, the examiner did not conduct a contemporaneous audiological examination of the Veteran; nor did she consider the Veteran's documented complaints of hearing difficulties in various environments. She also failed to address the favorable May 2010 private audiology opinion of record. If she had done so, she may have been apprised of the fact that the Veteran cannot hear people unless he faces them directly, even with the use of his hearing aids. (Emphasis added). This is because his speech discrimination scores are very poor, as explained by the August 2011 private examiner. For the foregoing reasons, the Board finds the November 2010 VA opinion regarding employability to be of limited probative value. With respect to the favorable private audiological opinions, both audiologists conducted contemporaneous audiological evaluations of the Veteran and expressly considered his reported difficulties with hearing and speech in multiple environments. In addition, the August 2011 examiner specifically considered the Veteran's poor speech discrimination and resulting limited ability to hear, even with the use of his hearing aids. Both examiners also considered work environments with noise; work environments which required verbal or telephonic communications; and work environments which required transportation/driving, or being around heavy or moving machinery. Based on the foregoing, both examiners concluded that the Veteran had difficulty communicating in all situations and that his profound hearing loss essentially rendered him unemployable. These private opinions were clearly based on a comprehensive, clinical review of the Veteran's hearing loss, as well as his subjective complaints, and they were well-supported by rationale. For the foregoing reasons, the Board finds these opinions to be highly probative as to the issue of employability, outweighing the only unfavorable opinion of record. Thus, as the most probative evidence of record indicates that the Veteran's service-connected hearing loss precludes him from obtaining and retaining substantially gainful employment, and resolving all reasonable doubt in the Veteran's behalf, entitlement to a TDIU has been established and his appeal is granted. 38 C.F.R. § 4.16. ORDER Entitlement to a TDIU rating is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs