Citation Nr: 1436282	
Decision Date: 08/14/14    Archive Date: 08/20/14

DOCKET NO.  09-18 504	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Oakland, California



THE ISSUE

Entitlement to a total disability rating based upon individual unemployability (TDIU) by reason of service-connected disability.



REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs



ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1944 to August 1946. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the RO.

The Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed.  The April 2014 Supplemental Statement of the Case (SSOC) and the Veteran's VA Form 21-22 appointing California Department of Veterans Affairs as his representative are part of VBMS.  The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

The service-connected disability manifested by bilateral hearing loss is shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational level and previous work history.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating are met.  38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. § 4.16(a) (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 

In light of the favorable determination to grant an award of a TDIU rating,
VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. 
§§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159.


Analysis

Total disability ratings for compensation based on individual unemployability 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 a result of a single service-connected disability ratable at 60 percent or more, or 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.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

For the purpose of one 60 percent disability, disabilities of common etiology or accident, and injuries incurred in action will be considered a single disability.  38 C.F.R. § 4.16(a).

In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.  "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."  Id. at 1354.  

In September 2008, the Veteran's claim for a TDIU rating was received.  During the current appeal period, the Veteran has been service connected for bilateral hearing loss as 70 percent disabling and tinnitus as 10 percent disabling.  The Veteran has had a combined rating of 70 percent from January 2008.  Thus, the Veteran meets the percentage criteria laid out in 38 C.F.R. § 4.16(a).  The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable.

The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. 
App. 524, 529 (1993).  Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

The Board finds that the evidence shows that the service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment that would be consistent with his education and previous employment history.  

In his December 2008 Notice of Disagreement, the Veteran avers that his service-connected disabilities make him unable to secure gainful employment as a welder.  He states that he is unable to hear without the use of his hearing aids and that wearing his welding equipment prevents him from using his hearing aids.  

As a result, the Veteran reports that he would be unable to hear those around him while he was welding.  The Veteran contends that this creates a safety hazard for himself and his coworkers.  This has left him unable to find gainful employment in his vocational specialty as a welder.

On VA examination in February 2003, the examiner reported that the Veteran discontinued schooling after completing the fourth grade at the age of 12.  Subsequently, the Veteran undertook jobs as a field worker to help support his family.  In 1947, at the age of 21, the Veteran began working as a welder.  The Veteran worked as a welder for his entire career.

In February 2014, the Veteran was afforded a VA examination.  The examiner opined that the Veteran's bilateral hearing loss adversely impacted the Veteran's ordinary conditions of daily life including his ability to work.  The examiner noted that the Veteran reported being unable to hear without hearing aids.

In considering the record in its entirety, the Board finds that the evidence shows that the impact of the service-connected bilateral hearing loss as likely as not prevents the Veteran from obtaining and retaining substantially gainful employment when his education and work background are considered.  

In resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU rating is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   


ORDER

Entitlement to a TDIU rating is granted, subject to the regulations governing the award of monetary benefits. 




____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
 Board of Veterans' Appeals

Department of Veterans Affairs