Citation Nr: 1326004 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-17 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to December 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to a TDIU. The Board remanded the Veteran's TDIU claim for further evidentiary development in September 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 hearing loss and tinnitus, which are of common etiology, with a combined 60 percent disability rating. 2. The evidence of record indicates that the Veteran's service-connected hearing loss and tinnitus prevent him from engaging in substantially gainful employment for which his educational and occupational experience would qualify him. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board's decision herein to grant a TDIU constitutes a full grant of the benefit sought on appeal. Therefore, no further action is needed to comply with the VCAA and implementing regulations. I. Entitlement to a TDIU TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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, 3.34l, 4.16(a) (2012). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a) (2012). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Analysis In the instant case, service connection is in effect for bilateral hearing loss, rated as 50 percent disabling, and for tinnitus, rated as 10 percent disabling. The Veteran's hearing loss and tinnitus are deemed to have both resulted from hazardous military noise exposure, thus from a common etiology, and both disabilities affect a single body system. Accordingly, these disabilities are considered one disability for purposes of his TDIU eligibility. Thus, as the combined rating for these disabilities is 60 percent, the Veteran meets the minimum percentage requirements for entitlement to a TDIU. The remaining question is whether the Veteran's service-connected disabilities, combined, render him unemployable. Turning to the evidence of record, the Veteran indicated in his September 2010 TDIU claim that he completed only one year of high school education. He reported that he worked as a hospital supply clerk for nine years prior to his early retirement in 1995. He also indicated that he had not received any type of education or training prior to becoming too disabled to work. Additionally, during a May 2012 VA examination, the Veteran reported being employed doing mostly factory-type work after his separation from service and prior to his employment as a hospital supply clerk. With respect to the severity of his service-connected disabilities, audiometric testing performed during his September 2010 VA audiological examination showed that he had bilateral moderately severe to profound sensorineural hearing loss. Additionally, he was found to have only fair speech discrimination in the right ear and poor speech discrimination in the left ear. In support of his TDIU claim, the Veteran submitted a letter from Kathleen Sinks, Au.D. CCC-A, a private audiologist at Hearing Health Care Center. Dr. Sinks noted the Veteran's report of having difficulty with speech understanding in one-on-one conversations and in background noise. The Veteran also reported being unable to effectively use the telephone or watch television due to speech discrimination problems. He also reported having to use facial cues to read a situation. Dr. Sinks gave the opinion that the Veteran's hearing loss and tinnitus had essentially rendered him unemployable. She noted that he needed to avoid working in any environment in which there was any noise which could exacerbate his hearing loss. She additionally noted that his limitations would prevent face-to-face verbal communication as well as communication via telephone. She further indicated that his condition would pose a significant safety risk in any job setting involving transportation/driving or being around heavy or moving machinery. Dr. Sinks thus concluded that the Veteran's hearing impairment would significantly impair his employability in most job assignments, with or without adaptation. Opinions regarding the Veteran's employability were provided by VA examiners in April 2012, May 2012, and January 2013. Additionally, a medical expert opinion was obtained from a healthcare professional in VA's Veterans Health Administration (VHA) in June 2013. In the April 2012 opinion, a VA audiologist provided the opinion that the Veteran's hearing loss alone should not be a barrier to a wide range of employment settings. Notably, however, she did not appear to consider the effect of the Veteran's tinnitus on his employability. The May 2012 VA examiner opined that the Veteran did not have any medical conditions that affected his employability at that time. In the January 2013 opinion, the same VA audiologist that provided the April 2012 opinion indicated that after reviewing Veteran's VA treatment records that had since been associated with the claims file, her opinion regarding the Veteran's employability remained unchanged. Notably, she also indicated that she was unable to opine regarding the Veteran's ability to function in specific job situations or other fields for which his educational and occupational experience would qualify him without resort to speculation. She did not provide any indication why she was unable to render such an opinion without resort to speculation. Finally, the June 2013 VHA expert indicated that he concurred with the VA audiologist's opinion and that he believed a finding of unemployability would be overly broad. However, the expert did not appear to fully address the issue of whether the Veteran's service-connected hearing loss and tinnitus, combined, would render him unable to secure or follow a substantially gainful occupation for which his education and experience would qualify him. Moreover, the VHA specialist indicated that the Veteran's VA treatment records should document whether he has been benefiting from the use of hearing aids, and in determining whether he had adequate communication ability to work. Thus, the VHA expert suggested that he did not review the Veteran's entire record before rendering the negative opinion. Incidentally, although the Veteran was reportedly doing well with amplification (with hearing aids) during a January 2011 VA audiological consultation, he reported having problems hearing on both landline and cell phones. In September 2011, he reported for hearing aid adjustment with a complaint of the volume being too soft. Also, during an April 2012 VA primary care consultation, he was noted to have hearing acuity diminished to spoken word. Thus, even with the use of hearing aids, the Veteran has still been shown to have substantial difficulties with his hearing. This would tend to add credence to Dr. Sinks' opinion that the Veteran's hearing loss would significantly impair his employability in most job assignments with or without adaptation. Based on Dr. Sinks' opinion, the Board has reached the conclusion that entitlement to a TDIU is warranted. Dr. Sinks provided a fully informed, fully articulated, and well-reasoned opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. Her opinion has clearly indicated that the Veteran would not be fit for employment in a noisy environment, and that he would not be fit for employment in a setting where face-to-face communication would be necessary. These environmental exclusions would appear to foreclose the possibility of the Veteran returning to perform factory-type employment, which would likely take place in a noisy environment; or hospital clerical work, which would likely require a great deal of face-to-face communications. Thus, the Veteran has essentially been found to be precluded from following employment within a field for which his education and prior work experience would qualify him. This opinion is more probative than the VA opinions, which are either not based on a complete history or lack a complete rationale. Overall, the Board has resolved all doubt in favor of the Veteran and has determined that the criteria for entitlement to TDIU are met. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to a TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs