Citation Nr: 1437833 Decision Date: 08/25/14 Archive Date: 09/03/14 DOCKET NO. 14-07 020 ) 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 (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1946 to November 1947, and from August 1948 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which in pertinent part, denied entitlement to TDIU. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a complete assessment of the evidence. 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 1. Service connection is currently in effect for bilateral hearing loss, rated as 50 percent disabling, and tinnitus, rated as 10 percent disabling. The combined disability evaluation is 60 percent. 2. The Veteran's service-connected disabilities preclude securing and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The claim of entitlement to a TDIU has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). TDIU - Laws and Regulations It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a veteran meets the schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court of Appeals for Veterans Claims (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91 (Dec. 17, 1991). Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and maintain a substantially gainful occupation. Id. The Court has also held that a veteran's advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, 4 Vet. App. at 363. Furthermore, marginal employment shall not be considered substantially gainful employment. 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. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Entitlement to a TDIU Analysis The Veteran contends that he is entitled to a TDIU because he is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. Specifically, the Veteran contends that he is unable to work due to his service-connected hearing loss and tinnitus. The evidence of record indicates that the Veteran completed eight years of grade school education. Prior to active service, the Veteran was employed as a light truck driver. His military occupation was a rifleman. The Veteran's post-service employment history included work as a baker, carpenter, and a construction worker. The Board first finds that the Veteran's service-connected disabilities meet the schedular criteria for consideration of a TDIU as there is one disability rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service connected for bilateral hearing loss, rated at 50 percent, and tinnitus, rated at 10 percent. The Veteran's combined disability evaluation is 60 percent. 38 C.F.R. § 4.25. As the disabilities of bilateral hearing loss and tinnitus result from the same etiology, they are considered to be one disability for the purpose of determining entitlement to a TDIU. 38 C.F.R. § 4.16(a). As such, the Veteran's has a single disability evaluation of 60 percent disabling. Id. After review of all the evidence of record, lay and medical, the Board next finds that the Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. In connection with his request for a TDIU, the Veteran was afforded a VA examination in May 2012. At that time, the VA examiner accurately identified the Veteran's service-connected disabilities. However, the VA examiner was unable to offer a conclusory opinion regarding the Veteran's ability to secure or maintain substantially gainful employment. The VA examiner indicated that reliable test data could not be obtained during the examination due to the Veteran's non-service-connected disabilities, namely the Veteran's dementia, and as such, the VA examiner was unable to offer an opinion without resorting to mere speculation. In support of his claim for a TDIU, the Veteran submitted two private audiological opinions addressing the Veteran's unemployability, both dated in November 2012. In the private opinion from M.L.-C., the private audiologist concluded that the Veteran is completely unemployable, but did not distinguish the Veteran's service-connected disabilities apart from his non-service-connected disabilities in their respective effect on his ability to secure or maintain substantially gainful employment. In the November 2012 private opinion from J.D., the private audiologist also concluded that the Veteran's severe hearing loss and tinnitus as well as his severe dementia rendered him unemployable, but was able to differentiate the effect of the Veteran's service-connected disabilities on unemployability from his non-service-connected disabilities. Specifically, J.D. indicated that the Veteran would need to avoid working in any environment with noise that may exacerbate his hearing loss, as well as any environment that would require normal hearing or good speech understanding. J.D. further indicated that the Veteran's service-connected disabilities would prevent face-to-face verbal communication as well as communication via telephone. Additionally, J.D. indicated that the Veteran would be placed at a significant safety risk in any environment involving transportation or operating heavy machinery. In conclusion, J.D. opined that the Veteran's service-connected disabilities significantly impair his employability in most job assignments without adaptation. The evidence of record indicates that the Veteran has a current disability rating that meets the schedular criteria for consideration of a TDIU. The Board finds that the opinion offered by J.D. demonstrates that the Veteran cannot work in the field in which he has training and experience, and that the service-connected hearing loss and tinnitus prevent him from securing and maintaining substantially gainful employment. For these reasons, and resolving any doubt in the Veteran's favor, the Board finds that the evidence of record as a whole demonstrates that the Veteran has met the criteria set forth in 38 C.F.R. § 4.16, and accordingly, the Board finds that a TDIU is warranted. ORDER Entitlement to a TDIU is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs