Citation Nr: 1323414 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 12-28 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1944 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran requested a hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, received in April 2013. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). 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, evaluated as 90 percent disabling. 2. The Veteran's service-connected disability precludes all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. The Veteran contends that he is unemployable due to his only service-connected disability of bilateral hearing loss. See, e.g., October 2012 substantive appeal. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for bilateral hearing loss, evaluated as 90 percent disabling. As such, the Veteran does meet the preliminary criteria for consideration for entitlement to TDIU on a schedular basis. Consequently, the Board must now determine whether this service-connected disability precludes the Veteran from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The Veteran's April 2010 claim shows that he last worked full-time as a thrift store operator in 1987; he reported becoming too disabled to work in 2000. The Veteran completed seven years of grade school and had no additional education or training. He reported that his hearing loss had become so bad that he could not work any longer. A June 2010 VA audiological examiner opined that the Veteran's bilateral hearing loss would have no significant effects on occupation. It was expected that the Veteran's hearing loss may result in difficulty understanding speech in noisy settings or over the phone; however, with amplification and with reasonable accommodations as specified by the Americans with Disability Act, this hearing loss should not significantly affect vocational potential or limit participation in most work activities. The Veteran was also afforded a VA general medical examination in July 2010. He reported his bilateral hearing loss and that hearing aids did not help. It was noted that the Veteran was extremely hard of hearing. The Veteran reported that his usual occupation was store manager/truck driver. He retired in 1987; the cause of his retirement was eligibility by age or duration of work. He was diagnosed with diabetes mellitus, type II; degenerative joint disease of multiple joints; and glaucoma. The examiner opined that the Veteran could function in an occupational environment with his nonservice-connected disabilities with limitations. Due to his eye condition, he could not function in an occupational environment, which required normal visual acuity. In his October 2011 notice of disagreement, the Veteran disagreed with the June 2010 VA examiner's opinion. He reported that no empirical data was provided as to the speech recognition or loss level that could be obtained with amplification at the June 2010 VA examination. Without that data, there was no basis for the opinion that adequate hearing could be obtained with amplification. In his October 2012 substantive appeal, the Veteran reported that he could not gain or retain employment based on his disability. He reported that hearing aids did not improve his disabling condition to an acceptable level to allow him to function properly (i.e., understand direction, talk on the phone, and hear someone unless he was facing them, which were all safety and employment detractors for employment). Based on a review of the evidence, the Board concludes that entitlement to a TDIU is warranted. Although the VA audiological examiner opined that the Veteran is able to work with amplification, the Veteran has competently and credibly reported that even with hearing aids, he was unable to function properly. The Veteran's reports are supported by the July 2010 general medical examiner's observation that the Veteran was extremely hard of hearing. Considering the Veteran's reported history as a thrift store operator/store manager and truck driver, when taking into account his educational background, the Board concludes the Veteran's severe bilateral hearing loss as evidenced by a 90 percent disability rating, renders him unable to obtain and maintain substantially gainful employment. To the extent that the July 2010 examination indicates that the Veteran's nonservice-connected disabilities affect his employability, the Board has considered such opinion, but finds the Veteran's statements regarding his bilateral hearing loss rendering him unemployable persuasive. Accordingly, in considering the severity of the Veteran's service-connected disability, his competent and credible lay statements, as well as his employment and education history, and in affording him the benefit-of-the-doubt, the Board finds that he is unemployable due to his service-connected disability. The evidence is in favor of the grant of a TDIU. Entitlement to a TDIU is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs