Citation Nr: 1326954 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 12-04 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1945 to August 1946 and from June 1949 to September 1952. This case comes before the Board of Veterans' Appeals (Board) Board on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). In February 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In his February 2012 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. This hearing was scheduled for October 2012, but the Veteran then canceled the hearing. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d),(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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A total disability evaluation may be assigned where the schedular evaluation 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered one disability: (1) disabilities of one or both upper extremities, or of 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, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The Veteran is service connected for bilateral hearing loss, rated 50 percent disabling, and for bilateral tinnitus, rated 10 percent disabling. His combined rating is 60 percent. However, as the Veteran's bilateral hearing loss and tinnitus are two disabilities affecting a single body system, his hearing, the two disabilities qualify as one disability rated as 60 percent disabling for the purposes of TDIU. "Substantially gainful employment" is not currently defined in VA regulations. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. The Veteran has contended that his service-connected disabilities, especially his hearing loss, are severe enough to prevent gainful employment. When provided an audiological evaluation in September 2011, the Veteran said that he could not hear. Audiometric testing at that time revealed moderate to severe right ear sensorineural hearing loss, and severe to profound left ear sensorineural hearing loss. It was noted that the Veteran had difficulty hearing in all environments, especially when he was without his hearing aids. It was reported that the Veteran was unemployed, but the examiner did not provide an opinion on the Veteran's employability due to his service-connected hearing loss and tinnitus. On VA examination in October 2011, it was noted that the Veteran had retired in 1991 as he was eligible by age or duration of work. In February 2013, the Board remanded the appeal so that an opinion could be obtained regarding whether the Veteran's service-connected disabilities, considered in combination, preclude substantially gainful employment. This opinion was to be obtained from either the September 2011 VA audio examiner or after another VA audiological examination was performed. Another audiological examination was completed in April 2013 by a different examiner. Unfortunately, the Board finds the associated opinion to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At the April 2013 examination, the examiner was unable to obtain accurate audiometric results due to the Veteran's cognitive difficulties. Nevertheless, the examiner offered opinions and detailed rationales with respect to the etiology of the Veteran's hearing loss and tinnitus, which are both already service-connected. However, the examiner's only notes regarding employability were the Veteran's own reports that he is extremely hard of hearing and utilizes a Plantonics device with his hearing aids, but still has a difficult time hearing and understanding. The examiner then opined that the hearing loss is not a deterrent to a laborer's job. The examiner documented no impact on the Veteran's employability by his tinnitus. He also offered no detailed discussion as to the impact of the Veteran's hearing disabilities on his employability beyond documenting the Veteran's own words in this regard. Further, his apparent opinion that the Veteran could perform laborer's jobs was not supported by any rationale that considered the Veteran's education and work history and the examiner did not elaborate on his definition of a laborer's job. For these reasons, the Board remands the appeal for another opinion as to the Veteran's employability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Forward the Veteran's claims folder to the VA audiologist who conducted the April 2013 audiology examination or an alternate VA audiologist if the former is unavailable, and request that the examiner provide an opinion as to the effects of the Veteran's service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, CONSIDERED IN COMBINATION, preclude him from securing and following substantially gainful employment consistent with his high school education and occupational experience as an electrician and Alaska pipeline worker. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale must be provided for the opinion provided. If it is determined that an opinion cannot be formulated without another clinical examination of the Veteran, the examination should be scheduled. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, the Veteran will be provided a supplemental statement of the case and an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).