Citation Nr: 1329431 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 13-106 11 ) 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 the service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1944 to May 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the above claim. The Veteran filed a notice of disagreement (NOD) with this determination in May 2012, and timely perfected his appeal in April 2013. After the RO issued the final statement of the case (SOC) in April 2013, and after the appeal was transferred to the Board, the Veteran submitted additional evidence pertinent to the appeal. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2012). The appellant provided a waiver of review by the agency of original jurisdiction in June 2013. Appellate review may proceed. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). FINDING OF FACT The record evidence is in relative equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, given his education and occupational background. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on unemployability due to the service-connected disabilities are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the Board's decision to grant the Veteran's claim for a TDIU, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notice or assistance is necessary, and the appeal at this time is not prejudicial to the Veteran. II. TDIU Consideration Total disability ratings for compensation based on individual unemployability 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). In this regard, the Board highlights that disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (i.e., the orthopedic, digestive, respiratory, cardiovascular-renal, or neuropsychiatric system), are considered to be one disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Entitlement to a TDIU requires the presence of an impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 in arriving at a conclusion, 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. In making this determination, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The Board notes that the fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The Veteran contends that he is entitled to a TDIU. Specifically, he reported that he his disabling bilateral hearing loss has rendered him unemployable. In this case, service connection is in effect for tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as 60 percent disabling. The Veteran's combined disability rating is 60 percent. While the Veteran has at least one service-connected disability rated at 40 percent or higher, he does not meet the combined 70 percent disability rating necessary to be eligible for a TDIU. However, the Board notes that the Veteran's bilateral hearing loss and tinnitus both result from a common etiology (i.e., in-service acoustic trauma) and both affect a single body system (i.e., his audiological system). As such, these conditions are considered to be one disability for the purpose of determining whether the Veteran meets the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). Therefore, when the ratings for the Veteran's bilateral hearing loss and tinnitus are combined, they are evaluated at 60 percent disabling. 38 C.F.R. § 4.25. Accordingly, because the Veteran has a single service-connected disability that has been rated as 60 percent disabling, he has met the percentage requirements of 38 C.F.R. § 4.16(a). Now turning to the evidence of record, the Veteran was afforded a VA examination in December 2010 to assess his hearing loss disability. At that examination, the Veteran reported that he had difficulty hearing at all times, and did not understand when people talked, even if it was quiet. He reported that he worked for Southwestern Bell for more than 30 years. He was a lineman and installer repairmen. He also worked with special recruits. After performing audiological testing, the VA examiner diagnosed the Veteran with left ear severe and right ear profound sensorineural hearing loss. The effects of the Veteran's bilateral hearing loss on usual occupation and daily activities included, not hearing conversation well even with hearing aids, having to have most things repeated, and poor understanding of speech, especially in the right ear. The Veteran was afforded a VA examination in March 2012 to assess his employability. The VA examiner performed audiological testing to determine the Veteran's level of hearing loss. Upon examination, the examiner diagnosed the Veteran with mild to severe/profound sensorineural hearing loss with very poor speech discrimination, bilaterally. The examiner noted that a thorough review of the medical records and claims file was completed. It was his opinion that with the proper amplification and reasonable accommodations as specified in the Americans with Disabilities Act, the Veteran's hearing loss alone should not significantly affect vocational potential. Employment would be feasible if requiring little interaction with the public. The Veteran submitted a May 2012 letter from his private treating Clinical Audiologist. The Audiologist stated that the Veteran's most recent hearing test, done at the VAMC in March 2012, indicated that the Veteran had a severe to profound sensorineural hearing loss, bilaterally, with poor speech recognition. The Veteran was currently rated 60 percent service-connected for his hearing loss and 10 percent for tinnitus. After reviewing the Veteran's most recent test and talking with him, it was the Audiologist's opinion that the Veteran's hearing loss posed an extreme handicap on his ability to communicate and would make him virtually unemployable. Due to his hearing loss he could not work in any high noise environment. Additionally, even face to face communication would be limited as well as telephone communication. His hearing loss would pose a significant safety risk in any job setting involving driving, transportation or moving machinery due to the fact that his loss is so severe. His service-connected hearing loss significantly impaired his employability in most job assignments even with amplification. After a careful review of the evidence, the Board finds that the Veteran's pertinent lay evidence and the positive nexus opinion provided by the Veteran's private Audiologist, demonstrate that his service-connected bilateral hearing loss renders him unemployable. While the March 2012 VA examiner concluded that with the proper amplification and reasonable accommodations as specified in the Americans with Disabilities Act, the Veteran's hearing loss alone should not significantly affect vocational potential, both the December 2010 VA examiner and May 2012 private Audiologist stated that the Veteran had difficulty hearing even with amplification. Additionally, the May 2012 private Audiologist noted that the Veteran's bilateral hearing loss posed an extreme handicap on his ability to communicate and would make him virtually unemployable. The Board concludes that the balance of positive and negative evidence of record is at the very least in relative equipoise with respect to the Veteran's TDIU claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. The Board finds that reasonable doubt exists as to whether the Veteran is able to secure and follow substantially gainful employment as a result of his service-connected bilateral hearing loss. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board grants the Veteran's claim of entitlement to a TDIU. 38 U.S.C.A. § 5107(b). ORDER Subject to the laws and regulations governing monetary awards, entitlement to a total disability rating based on individual unemployability due to the service connected disabilities is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs