Citation Nr: 1325161 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-16 775 ) 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 Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's service-connected disabilities, bilateral hearing loss rated 60 percent, and tinnitus rated 10 percent, are rated 60 percent combined; they are not shown to be of such nature and severity as to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The schedular requirements for a TDIU rating are met; however, a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A February 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in February 2010 and January 2013. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 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." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's advancing age on his ability to function. When 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 each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's service-connected disabilities and respective ratings include: bilateral hearing loss, rated 60 percent; and tinnitus, rated 10 percent. The Veteran's hearing loss disability is rated 60 percent and therefore he meets the schedular requirements of 38 C.F.R. § 4.16(a). To establish entitlement to a TDIU rating, however, it must also be shown that, due to the service-connected disabilities alone, the Veteran is unable to obtain or pursue substantially gainful employment. The preponderance of the evidence is against such a finding. The Veteran contends that due to his service-connected hearing loss, he is unable to maintain substantially gainful employment. In a VA Form 8940 filed in January 2009, he reports that he last worked full-time in May 2007 in sales. He asserts that he has not undertaken to obtain employment because no employer would hire him because of his severe disabilities. The Veteran has indicated he completed four years of college. In a March 2009 statement, the Veteran asserts that he is basically deaf in his right ear and cannot hear in his left ear without a powerful hearing aid; even with the hearing aid, proper word discrimination is very difficult. A VA Form 21-4192 from the Veteran's previous employer received in March 2009 notes the Veteran worked in sales from May 1998 and retired in April 2007, and that there were no concessions made to the Veteran due to disability, and there was no indication he retired due to disability. A July 2009 private audiologist found the Veteran has a mild to profound sensorineural hearing loss (SNHL) in the left ear, and essentially "dead ear" SNHL in the right ear. The audiologist opined that the Veteran's severe hearing loss and tinnitus rendered him unemployable; she explained that he needed to avoid working in any environment where there was noise that may exacerbate his hearing loss, and also needed to avoid any work environment which required normal hearing or good speech understanding (as his limitations in these areas would prevent verbal communication face-to-face or by telephone). The audiologist also indicated that the Veteran's hearing loss and tinnitus disabilities would pose a significant safety risk for any job involving transportation/driving or being around heavy or moving machinery. She concluded that without adaptation, his service-connected hearing loss would significantly impair his employment in most job assignments. On February 2010 VA examination, puretone testing revealed no measurable hearing in the right ear, and mild to severe mixed hearing loss in the left ear. The examiner opined that the Veteran's hearing loss would have no significant effect on occupation. The examiner noted that hearing loss and tinnitus should not preclude gainful employment, because with amplification the Veteran had 92 percent word recognition, which would allow him to understand normal conversational sound. The Veteran's representative asserts that the Veteran has a great difficulty securing and maintaining substantially gainful employment because he has difficulty hearing verbal commands and using a phone. The Veteran contends that the severity of his hearing loss would interfere with both physical and sedentary employment (No rationale for this contention was offered). On January 2013 VA examination, the Veteran was found to have a profound SNHL in the right ear and normal to severe SNHL in the left ear. The examiner opined that the Veteran's hearing loss and tinnitus disabilities would have significant effects on his occupation, to include difficulty understanding speech in noise. However, the examiner further opined that the hearing loss wound not render the Veteran unemployable. The examiner noted that the Veteran has had hearing loss since military service but nonetheless maintained gainful employment; he retired in 2007 from sales, having worked in that occupation with hearing loss. The examiner also noted that the Veteran has good word recognition in the left ear, with the use of a hearing aid. The examiner concluded there was nothing related to the Veteran's hearing loss that would preclude gainful employment. The evidence regarding the impact of the Veteran's hearing loss and tinnitus on his employability includes a private audiologist's opinion in support of his claim for TDIU and VA examination reports with opinions against his claim. Weighing the opinions in turn, the Board finds little probative value in the opinion by the Veteran's private audiologist, as that opinion is incomplete. While it discusses the impact of the Veteran's hearing loss and tinnitus on some forms of employment (noisy employment that might exacerbate the hearing loss, employment requiring face to face or telephone communication, and employment requiring operation of vehicles), it is silent regarding other forms of employment that do not appear to be inconsistent with hearing loss/tinnitus disabilities (e.g., document review, data entry or other computer work, light assembly, maintenance, etc.). Conceding the conclusion in the private opinion that the Veteran could not in fact work, in jobs that require extensive verbal communication, would expose him to noise trauma that would exacerbate the hearing loss and tinnitus, or place him at risk operating a vehicle or dangerous machinery, the Board finds that the opinion does not show that he is precluded by his service-connected disabilities and educational/occupational; background from participating in many other forms of work, such as those cited above. Notably also, the opinion also does not address the subsequent VA opinion indicating that with amplification the Veteran is capable of 92 percent word recognition. Regarding the February 2010 VA examiner's opinion the Board finds that while of itself it is not entirely adequate for rating purposes, it is adequate to serve as a challenge to the private audiologist's opinion. Specifically, February 2010 VA examiner observes (and the private audiologist's opinion does not contradict) that with amplification (particularly for the left ear) the Veteran had fairly good word recognition, countering the suggestion by the private provider that the Veteran is essentially incapable of verbal communication. The February 2010 VA examiner also found significant that the Veteran's hearing loss was a long-standing problem, and until he retired he was nonetheless capable of working with no accommodations made for the hearing loss at his last place of employment. The Board finds most probative the January 2013 VA examiner's opinion. The opinion reflects familiarity with the entire record and provides a well-reasoned explanation of rationale. The examiner conceded that the Veteran would have difficulty understanding speech in a noisy environment, but noting the Veteran's educational; background and work experience found that the hearing loss and tinnitus were not shown to be such that they would preclude employment. This examiner likewise observed that the Veteran was capable of understanding speech with amplification. As the opinion addresses the impact of the Veteran's hearing loss and tinnitus on all (not just some specific) types of employment, reflects familiarity with the entire record, including the Veteran's work experience, and weighed all factors the Board finds it both probative and persuasive. The Veteran's assertion (that he feels the severity of his service-connected disabilities would interfere with him performing both physical and sedentary employment) merits little probative value. It is self-serving, and does not explain why, given his education and experience, his hearing loss and tinnitus should prevent him from participation in occupations (examples given above) that do not require unimpaired hearing acuity. The Veteran asserts he has not applied for employment, because employers will not hire him due to his service connected disability. However, 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 in a claim for a TDIU rating is whether the Veteran is rendered incapable of engaging in employment consistent with education and experience. In summary, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities (hearing loss and tinnitus), alone, are of such nature and severity as to prevent his participation in any regular substantially gainful employment consistent with his education and experience. Hence, the benefit of the doubt doctrine does not apply. The appeal in this matter must be denied. ORDER The appeal seeking entitlement to a TDIU rating is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs