Citation Nr: 1339104	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  10-36 957	)	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 disabilities (TDIU).  



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel



INTRODUCTION

The Veteran had active service from December 1951 to April 1955.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2013 correspondence, the Veteran's representative raised a motion of clear and unmistakable error (CUE) in a January 1961 rating decision that reduced the rating for the Veteran's service-connected left eye disability.  This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

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

It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.  


CONCLUSION OF LAW

The criteria for a grant of TDIU have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013).  



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim.  Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim.  

The Board has reviewed all of the evidence in the claims file and in Virtual VA (VA's electronic data storage system), 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).  The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim.  

A total disability rating 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 the result of service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a 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 nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a).  For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability.  Id.  Disabilities that are not service connected cannot serve as a basis for a total disability rating.  38 C.F.R. §§ 3.341, 4.19.  

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor).  

The Veteran's service-connected disabilities consist of the following: bilateral hearing loss, rated 60 percent disabling, effective June 6, 2008, and 70 percent disabling, effective April 26, 2013; corneal scarring of the left eye with secondary glaucoma and aphakia, rated 30 percent disabling, effective September 23, 1998, and rated 40 percent disabling, effective June 6, 2008; and tinnitus, rated 10 percent disabling, effective June 6, 2008.  Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a).  What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment.  

The instant claim for TDIU was raised on October 9, 2009.  

In a February 2010 private medical letter by J. Dann, MS, it was opined that the Veteran's severe hearing loss and tinnitus have essentially rendered him unemployable.  It was indicated that he needs to avoid working in any environment in which there is noise which may exacerbate his hearing loss.  Furthermore, he should avoid any environment which requires normal hearing or good speech understanding.  These limitations would prevent verbal communication, face-to-face as well as by telephone.  His condition would pose a significant safety risk in any job involving transportation/driving or being around heavy or moving machinery.  

A February 2010 VA audiological report noted that the Veteran's disabilities include bilateral sensorineural hearing loss.  It was indicated that further discussion regarding his degree of hearing impairment along with his visual impairment impacting his ability to do much at all, including attempting to work, and communicate in social and business situations, was performed.  Based on the impact of his dual sensory impairment, it was felt that the Veteran should be re-evaluated for individual unemployability.  

On April 2013 VA hearing loss examination, the Veteran reported that he misses every third word that is said, and sometimes more.  He previously worked for AT&T and struggled to hear at the end of a conference table and would frequently speak off-topic during meetings.  He also reported difficulty understanding in adverse listening conditions, such as a restaurant or anywhere with multiple speakers.  The examiner opined that the Veteran's hearing loss alone should not be a barrier to a wide range of employment settings.  It was noted that he may have trouble working well in very noisy environments, and which require him to often use non face-to-face communication equipment such as speakers, intercoms, etcetera, or in jobs which require a great deal of attention to high pitched sounds.  It was concluded that his hearing loss and tinnitus alone should not prevent employment in a loosely supervised situation with limited public contact.  

On April 2013 VA eye examination, it was opined that the Veteran's eye condition does not impact his ability to work.  It was noted he may have difficulty with jobs requiring good binocular vision/stereoacuity.  

In a May 2013 private medical letter by J. Dann, MS, it was opined that the Veteran's severe hearing loss and tinnitus have rendered him unemployable.  It was related that he should avoid working in any environment in which there is noise, which may exacerbate his hearing loss.  He should also avoid any environment which requires normal hearing or good speech understanding.  These limitations would prevent verbal communication, face-to-face as well as by telephone.  
After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment.  In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO.  See Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013).  

The evidence shows that the Veteran has been retired since approximately 1992.  In addition, his education includes a high school degree and at least some college.  His post-service work experience shows that he largely worked for an electric company and that he has also farmed.  Based on the evidence presented in this case, the Board finds the evidence is at least in equipoise regarding whether the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail).  The Board finds significant that there is private medical evidence supporting the Veteran's claim, and opining that the Veteran's bilateral hearing loss and tinnitus render him unemployable.  The Board also finds significant that the April 2013 VA eye examination report found that the Veteran's left eye disability would have no impact on his ability to work, but provided no basis for such opinion.  

Thus, given the evidence regarding the severity of the Veteran's service-connected disabilities, and the opinions of record, and the other evidence of record indicating the Veteran's functional limitations due to his service-connected disabilities, the Board finds that the evidence shows he is entitled to an award of a TDIU rating.  See Geib v. Shinseki, No. 2012-7164 (Fed. Cir. Oct. 29, 2013).  Accordingly, the Veteran's appeal of this issue is granted.  


ORDER

Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.  




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs