Citation Nr: 1325047 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 12-10 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Kenichi Watanabe, Agent WITNESS AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from June 1954 to April 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2011 rating decision in which the RO, inter alia, denied entitlement to a TDIU. In June 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. In June 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. The hearing transcript has been associated with the Veteran's electronic record. During the Board hearing, the Veteran submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Also in connection with the hearing, in view of the Veteran's age, the undersigned agreed to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). As a final preliminary matter, the Board notes that, as indicated above, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals the June 2013 Board hearing transcript. However, the remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 3. As of the February 3, 2010, date of claim, the Veteran's service-connected hearing loss (rated as 80 percent disabling) and tinnitus (rated as 10 percent disabling), have met the percentage requirements for the award of a schedular TDIU, and the collective lay and medical evidence on the question of the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU, from February 3, 2010, are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for a TDIU, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Analysis The Veteran is seeking a TDIU. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss on February 3, 2010. Service connection is in effect for service-connected for bilateral hearing loss (rated as 80 percent disabling from February 3, 2010), and tinnitus(rated as 10 percent disabling from October 25, 2001. His combined total rating as of the date of his claim for an increased rating is 80 percent. As such, throughout the course of the appeal, the Veteran has met the objective, minimum percentage requirement set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU due to his service-connected disabilities. Thus, the remaining question is whether the Veteran's service-connected disabilities, in fact, render him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is 'whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.' See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board also points out that, in adjudicating a claim for VA benefit, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See, generally, 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. Initially, the Board recognizes that the Veteran has not been employed full-time at any time during the course of the appeal. The evidence shows that he was last employed full time as an elementary school counselor in June 1995. Nevertheless, as indicated above, unemployed does not mean unemployable. Although employment verification from the Veteran's previous employer indicated that he was employed as a substitute teacher during the 2006-07 school year and a part time temporary teacher during the 2009-10 school year, there is no indication that such work was anything other than marginal. See 38 C.F.R. § 4.16(a). According to the Veteran's statements of record and Board hearing testimony, he has a Master's degree in Psychology and was employed as a school counselor. He has asserted that his profound hearing loss made it difficult for him to teach because he could not communicate with the students. He also reported that he specialized in counseling children and it was even harder to understand them because they have higher pitched voices. He could not converse at a normal volume, which made any job where required interaction with people impossible. He has asserted that he was forced to retire from his position because of his hearing loss. In support of his claim, the Veteran has submitted statements in which his children reiterated that the Veteran could not hear the students that he had to communicate with during the course of his employment making it impossible for him to perform his duties. He was unable to teach or counsel students. The statements also indicate that the Veteran was unable to drive himself to jobs because of safety issues with driving and not being able to hear other traffic. His daughter also testified that it was hard to talk to the Veteran on the phone and that "you have to keep repeating yourself." She reiterated that given his inability to hear, he could not communicate, which was required for his work. The medical evidence of record has been thoroughly reviewed. In summary, VA treatment records document that the Veteran had impaired hearing and wore bilateral hearing aids. However, these records do not provide do not document any comment any opinion on the Veteran's employability. Private treatment records have also been considered, but while they document severe hearing loss, again they do not offer any sort of opinion on the Veteran's employability. On VA examination in March 2010, the Veteran reported that his greatest difficulty was trying to understand conversation without repetition. After reviewing the claims file and examining the Veteran, the examiner diagnosed mild to severe to profound sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear. Word recognition scores were poor bilaterally. The examiner opined that no amount of hearing loss and/or tinnitus could prevent a person from being employable. Specifically, the Veteran's hearing loss and tinnitus should not prevent him from working as a counselor. However, the examiner did not offer stated rationale for this opinion. The claims file also includes private medical opinions from O.N., M.D. In an August 2011 opinion, Dr. O.N. indicated that the Veteran's imbalance due to his inner ear issues linked to his military services had become worse and he now needed a cane. In a subsequent June 2013 opinion, Dr. O.N. opined that the Veteran was unable to obtain or retain gainful employment due to his medical condition. The medical problems listed included impaired hearing with bilateral hearing aids, prostate cancer status post radiation, colonic hyperplastic polyp and tubular adenoma, multinodular goiter with bilateral thyroid nodules, cryptic cirrhosis, fatty liver, cholelithiasis and hypertension. He was recently hospitalized for gastroesophageal varices with hemorrhage, cryptogenic, cirrhosis, thrombocytopenia, coagulopathy and anemia. It was also noted that the Veteran had balance problems and used a cane for ambulation. Also of record is a September 2011 opinion from the Veteran's VA doctor, which provides that the Veteran's medical problems include hearing with bilateral hearing aids, hypertension, prostate cancer, status post radiation, cirrhosis and gastric ulcer. He had to give up driving several years ago due to vertigo. Recently, he had balance problems and fallen so he now used a single point cane. In the doctor's opinion, the Veteran was not able to obtain or retain gainful employment. The record reflects conflicting medical opinions and other evidence on the issue of whether the Veteran is, in fact, unemployable due to his service-connected disabilities. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See ,e.g. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The March 2010 VA examiner found the Veteran's service connected hearing loss did not prevent the Veteran from being employable. By contrast, the September 2013 private opinion from Dr. O.N. and the September 2011 opinion from the Veteran's VA doctor both found that the Veteran was not able to gain or maintain employment to include as due to the Veteran's hearing loss disability (as both also listed numerous other nonservice-connected disabilities, seemingly as factors in the Veteran's employability). The Board points out that adjudicating a claim for a total rating based on individual unemployability is limited to consideration of the Veteran's service-connected disabilities. However, for purposes of determining entitlement to a total rating based on individual unemployability, it is not sufficient merely to deny a claim because a Veteran may be rendered employable due to nonservice-connected disability(ies). Rather, VA must disregard the degree of nonservice-connected disability and consider only whether the service-connected disability(ies), alone, would render the veteran unemployable. Blackburn v. Brown, 4 Vet. App. 395, 398 (1993). In this case, the Board finds that the Veteran's lay assertions concerning the affect his hearing loss has on his employability, the statements of his children, and the medical opinions of Dr. O.N. and the Veteran's VA doctor are at least as probative of that of the March 2010 VA examiner. In so finding, the Board notes that although Dr. O.N. and the VA doctor also listed nonservice-connected disabilities in their opinions, the opinions still indicated that the Veteran's hearing impairment contributed to his employability. Here, such would appear to be a significant contribution, as the record reflects that the Veteran has profound hearing loss and very poor word discrimination. Moreover, the Veteran and his children have provided credible statements as to how his hearing loss affected his ability to do his job as a counselor for children-consistent with his educational background and employment experience. While the VA opinion found that the Veteran was not unemployable, the examiner did not discuss the Veteran's education or work experience. The examiner also did not address the Veteran's contentions concerning the affect his hearing loss had on his ability to work. Rather, the examiner made a conclusory statement and provided no further rationale. In sum, given the totality of the lay and medical evidence-to include the Veteran's statements, the assertions of his children and the September 2013 and September 2011 medical opinions concerning his employability-the Board finds that the evidence on the question of whether the Veteran's service-connected hearing loss and tinnitus precludes him from obtaining and maintaining gainful employment is, at least, in relative equipoise. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the evidence noted above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU due to service-connected disabilities are met as of the date of claim, February 3, 2010. ORDER A TDIU due to service-connected disabilities, from February 3, 2010, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs