Citation Nr: 1414346 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 12-30 911A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDING OF FACT The Veteran's service-connected disabilities are of such severity as to effectively preclude substantially gainful employment for which the Veteran's education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for an award of a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to a TDIU, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. A veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated as 70 percent disabling; bilateral hearing loss, rated as 40 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran's combined schedular rating is 80 percent disabling. Thus, the pertinent schedular criteria based on rating percentages have been met. 38 C.F.R. § 4.16(a). Further, based on the totality of the evidence, and applying the doctrine of reasonable doubt, the Board finds that the evidence of record shows that the Veteran is unable to follow a substantially gainful occupation consistent with his education and occupational history due to his service-connected disabilities. A May 2009 VA Form 21-8940 reflects that the Veteran completed two-year college education and worked as an electrician for MeadWestvaco, PRG (MWV) from February 1985 to October 2008. He indicated that he left the job in October 2008 because of his service-connected PTSD, bilateral hearing loss and tinnitus. Initially, the Board finds that given the severity of the Veteran's hearing loss, his ability to work in an industrial setting is greatly limited. To that effect, an October 2008 letter from Dr. William Blythe stated that clinical evaluation of the Veteran showed a basically nonfunctional right ear and a minimally functional left ear due to severe to profound bilateral hearing loss. Dr. Blythe stated that "wearing a hearing aid on the right side is basically, useless, and I have encouraged [the Veteran] just to leave that hearing aid out." Concerning this, in a November 2008 letter, the Veteran's former employer, MWV, indicated that they could not allow the Veteran to work given his restrictions due to hearing loss, which limited his ability to work safely in an industrial environment. The letter states that MWV is an industrial paperboard making company and the environment requires constant measures for safety; the Veteran's job as a maintenance journeyman often required him to communicate over a radio as well as over loud noises and his inability to hear properly affected his job performance. In this regard, an August 2011 VA examiner offered an opinion that the Veteran's hearing loss alone should not be a barrier to wide range of employment settings as many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. However, the examiner also noted that the Veteran's hearing loss would cause problems depending on the vocation and he may have trouble working well in very noisy environments or in environments which required him to often use non face-to-face communications equipment. Indeed, the November 2008 letter from MWV stated that their work environment constantly required communications over radio and over loud noises for safety measures. During the December 2013 Board hearing, the Veteran testified that as an electrician his job required him to use radios to transfer messages back and forth to the foremen and supervisors "to keep the mill running." He described that "[i]t got to the point where I couldn't understand my two foremen and communicate with them and also I was, it was a situation where ... that because of my communication problem, ... it got to where I felt like a fool and I almost killed a guy." Based on the foregoing, it is apparent that the Veteran's hearing loss precluded him from following his vocation and he was eventually forced to leave his job. Here, the Veteran's post-service occupational experience is limited to one job. He worked for the same company for over 20 years as an electrician in an industrial setting and the record does not show that he had any other education or training. Furthermore, the August 2011 VA examiner pointed out that the opinion was made in regards to the Veteran's hearing loss alone and did not address the difficulties posed by his other disabilities. Significantly, there is ample evidence in the record that the Veteran's PTSD also greatly limited his ability to work. In regard to the level of occupational impairment due to the Veteran's service-connected PTSD, a June 2010 VA examiner found that the Veteran had moderate to severe impairment in his social and industrial adaptability due to his PTSD symptoms and was unable to work because of this. Also, a June 2011 VA PTSD examination reported the Veteran's symptoms of inability to establish and maintain effective relationships and impaired impulse control, such as unprovoked irritability with periods of violence. More importantly, however, the Board finds that the combined effect of all the Veteran's service-connected disabilities, specifically his hearing disabilities and PTSD, caused truly severe impairment in his occupational functioning. At the December 2013 Board hearing, the Veteran testified that he often had altercations with co-workers while he was working and he had difficulty finding other types of work because of his strong preference to stay alone. He stated that "I feel like I am dangerous to people and their safety, as well as myself." He further stated that "[i]nteraction with other people was the issue the whole time I worked, but I was able to control it up until the point where I started getting made fun of and not being able to communicate and understand instructions. ... [i]t made me feel like a fool..." The Board finds that the Veteran's statements are competent and credible evidence regarding the combined effect of his service-connected disabilities on his occupational functioning. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant). Accordingly, while there is no single opinion addressing the combined effect of all the Veteran's service-connected disabilities, in determining whether those disabilities preclude gainful employment, considering the lay statements, as well as the medical evidence of record regarding the severe functional impairments exhibited by each of his service-connected disabilities, as well as his educational and employment history, the Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (holding that VA is not required to obtain a single medical opinion considering the combined impact or effects of all the Veteran's service-connected disabilities). Accordingly, a TDIU is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs