Citation Nr: 1536065 Decision Date: 08/24/15 Archive Date: 08/31/15 DOCKET NO. 13-34 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Amanda Mineer, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from April 3, 1993 to April 17, 1993. He served in the Air National Guard from March 1957 to March 1963 and from May 1963 to September 1989. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a January 2013 rating decision that, in pertinent part, denied a total rating based on unemployability due to service-connected disability. The Veteran was afforded a Travel Board hearing in July 2015 before the undersigned Veterans Law Judge sitting at Los Angeles, California. The transcript is of record. The Board observes that although the issues of entitlement to increased ratings for hearing loss and tinnitus have also been certified for appeal. Following the January 2013 rating decision, the Veteran was specific in his notice of disagreement and VA form 9s (substantive appeal) that he only disagreed with the denial of a total rating based on unemployability due to service-connected disability. Therefore, the issues of entitlement to increased ratings for bilateral hearing loss and tinnitus are not properly on 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 2014). FINDINGS OF FACT 1. Service connection is in effect for bilateral hearing loss, rated 50 percent disabling and tinnitus, rated 10 percent disabling. The combined disability evaluation is 60 percent. 2. Bilateral hearing loss and tinnitus have a common etiology. 3. The Veteran's service-connected bilateral hearing loss and tinnitus reasonably preclude his securing and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, the criteria for a total rating based on unemployability due to service-connected disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The Court of Appeals forVeterans Claims (Court) has held, however, that the VCAA is not applicable where further assistance would not aid the appellant in substantiating a claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A (a)(2). In view of the Board's full grant of the benefit sought on appeal, further assistance is unnecessary to aid the appellant in substantiating the appeal. Pertinent Law and Regulations Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that if there are two or more 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). It is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16(b); see also 38 C.F.R. §§ 3.340, 3.341. Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployabilty due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is, in itself, a recognition that the impairment makes it difficult to obtain and keep employment. 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 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, supra. Factual Background and Legal Analysis Claims for an increased rating for bilateral hearing loss and a total rating based on unemployability due to service-connected disability were received in June and July 2012, respectively. The Veteran stated that he had worked as a supervisor for VA and had become too disabled to work and last worked in January 2011. He stated that he had a Masters degree. VA outpatient clinical records dated in May 2012 were received showing that the appellant underwent audiology consultation for hearing loss where it was noted that he wore hearing aids in both ears. He was reported to have severe to profound sensorineural hearing loss in the left ear as the result of a gun blast in the early 1980s and mild to severe hearing loss in the right ear. Statements and documentation of record reflect that the Veteran had great difficulty at work in his interactions with clients as an assistant coach and with other VA staff with whom he worked because of severe hearing loss. He indicated that he could not hear during meetings and that had had to ask others to repeat what they or others said frequently. The evidence indicates that the Veteran voluntarily retired because his disability was so problematic such that he was unable to be accommodated. On VA audiology examination in December 2012, puretone threshold averages at the applicable frequencies for VA rating purposes were 56 and 88 in the right and left ears, respectively. Speech discrimination was 66 percent in the right ear and zero percent in the left. The examiner indicated that hearing loss and tinnitus impacted the ordinary conditions of theVeteran's daily life, including the ability to work. By rating action dated in January 2013, the 30 percent disability rating for bilateral hearing loss was increased to 50 percent. Statements from two co-workers were received attesting to their knowledge of the inordinate interference the Veteran's hearing loss had on his work-related activities to the extent that he thought it best to retire. The report of an October 2013 audiology evaluation was received from Sonus Hearing where it was recorded that hearing loss coupled with poor word recognition scores and tinnitus made communication with others extremely difficult. It was reported that the Veteran relied on visual cues for speech understanding, especially in the presence of noise. The Veteran was most recently evaluated for VA compensation and pension purposes in July 2014. He was shown to have a puretone threshold average of 52 in the right ear and 103 in the left. The functional impact of hearing loss included inability to hear on the phone, having to have others repeat themselves, necessity to read lips, and social isolation, etc. Testimony was elicited on personal hearing on appeal in July 2015 in which the Veteran explained the difficulties he had in the workplace due to severe hearing loss, including problems communicating with others, inability to distinguish what was being said when two or more people were present, and inability to hear at meetings or with background noise present, etc. In this case, service connection is in effect for bilateral hearing loss, rated 50 percent disability and tinnitus, rated 10 percent disabling. The Veteran's combined disability evaluation is 60 percent. The Board is of the opinion that these two disorders have a common etiology and may be considered to be one disability for the purposes of determining entitlement to individual unemployability. As such, the Veteran meets the schedular criteria for consideration of a total rating based on unemployability based on having a disability rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). After careful review of the evidence, the Board finds that the Veteran's claim has merit and that the degree of hearing impairment presents a severe impediment to his securing and retaining employment. It appears that even with hearing aids, he does not have substantially functional hearing ability. Such limitations would prevent verbal communication face-to-face, in meetings and by telephone in his professional capacity. The evidence indicates that although he retired voluntarily, it appears that the frustrations of severe hearing impairment and inability to remedy the situation compelled him to take this course of action. His disability would likely impose the same restrictions or pose a safety risk in any other employment that required significant hearing ability. The evidence on the whole reflects that he would be unable to accomplish many tasks with the high level of hearing loss he currently has. Therefore, in view of the above, the Board concludes that the Veteran is precluded from employment in a field for which his education and prior work experience would qualify him, and that he is unable to secure or follow a substantially gainful occupation as a result of the limitations imposed by his service-connected hearing loss and tinnitus. See 38 C.F.R. § 4.16. The benefit of the doubt is resolved in favor of the appellant by finding that a total rating based on unemployability due to service-connected disability is warranted. ORDER A total disability rating based on unemployability due to service-connected disability is granted subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board ofVeteran'ss' Appeals Department of Veterans Affairs