Citation Nr: 1741007	
Decision Date: 09/20/17    Archive Date: 10/02/17

DOCKET NO. 15-46 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) from September 22, 2011 to February 10, 2014.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the United States Army from October 1943 to March 1946. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts in which, in part, the appellant's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) was denied. 

The Board notes that the Veteran's rating for service connected bilateral hearing loss was increased to 100 percent effective February 11, 2014. 

This matter was remanded by the Board in April 2017 for additional development. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience from September 22, 2011 to February 10, 2014.


CONCLUSION OF LAW

The criteria for entitlement to a TDIU have not been met from September 22, 2011 to February 10, 2014. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C.A. § 5103 (a)-compliant notice in December 2011. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claim. The examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. TDIU

The Veteran is seeking entitlement to a TDIU from September 22, 2011 to February 10, 2014. As noted above, the Veteran was granted a 100 percent disability rating for bilateral hearing loss effective February 11, 2014. Therefore, the Veteran's claim for a TDIU covers the period prior to that date. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2016).

Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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 at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

Here, the Veteran contends that he is unable to maintain gainful employment due to his service-connected disabilities prior the February 11, 2014. During this period he was service-connected for a bilateral hearing loss rated as 70 percent, tinnitus rated as 10 percent, and acro-otitis residuals as 0 percent. His combined rating for these service-connected disabilities prior to February 11, 2014 was 70 percent. 38 C.F.R. §§ 4.16 (a), 4.25. Accordingly, the Veteran met the schedular percentage requirements for eligibility for TDIU prior to February 11, 2014. 38 C.F.R. § 4.16(a). 

For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

Here, despite having a combined disability rating of 70 percent, the evidence does not establish that the Veteran's service-connected disabilities rendered him unemployable from September 22, 2011 to February 10, 2014. 

Review of the evidence reflects that a January 2010 VA examination report shows the Veteran has a moderate to moderately severe sensorineural hearing loss in the right ear with poor word recognition ability and a moderate to severe sensorineural hearing loss in the left ear with very poor word recognition ability. The examiner noted that especially in noisy environments, the Veteran would have difficulty hearing and difficulty understanding words clearly. The examiner also reported that with the use of amplification and reasonable accommodations as specified in the Americans with Disabilities Act the hearing loss alone should not significantly affect the Veteran's vocational potential or limit participation in work activities. The examiner noted that employment would be more feasible in a quiet environment requiring little interaction with the public.

A December 2011 VA examination report shows that the Veteran was service connected for tinnitus and impaired hearing. The examiner noted that the Veteran reported that he had difficulty hearing in all situations including work despite his hearing aids. The examiner also noted that the Veteran had several other non-service connected disabilities. Without regard to the Veteran's age or the impact of any non-service connected disabilities, the examiner opined that it was less likely than not that the Veteran's service connected conditions either alone or together rendered him unable to obtain or follow a substantially gainful employment. The examiner remarked that the overall severity of the Veteran's service connected conditions did not prevent him from continuing in his previous career as an engineer and that that the total of his service connected conditions would not prevent him from being able to retrain in a new field for substantially gainful employment.  The examiner noted that the Veteran had not worked for more than 20 years and while he was not completely disabled by his service connected ear problems he had multiple other non-service connected morbidities as well as an advanced age(86).

After a review of the evidence of record the Board finds that the Veteran's service-connected disabilities, alone or in combination, did not render him unable to obtain or maintain gainful employment from September 22, 2011 to February 10, 2014. In so finding, the Board acknowledges that the Veteran's service-connected bilateral hearing loss is productive of a great degree of disability, but the VA examination reports and evidence of record shows that his hearing loss, together with his other service connected disabilities, did not render him unemployable, as long as he is provided some accommodations. The Board finds that there is no credible evidence suggesting that the Veteran was unable to obtain or maintain employment in a position requiring a quiet environment with the use of hearing aids prior to February 11, 2014, particularly given his last job in working as a mathematician.

It is clear that the Veteran's service-connected bilateral hearing loss, tinnitus, and acro-otitis residuals did have an impact on his ability to work from September 22, 2011 to February 10, 2014. Although there is no disputing these service-connected disabilities interfered with some types of work, the evidence does not suggest these disabilities precluded all gainful employment during the period on appeal. This conclusion is supported by the opinions of the VA examiners, who have consistently noted that the Veteran's service connected disabilities alone did not preclude or enable him to participate in or maintain gainful employment. Prior to February 11, 2014, the Veteran was noted to participate in activities such as volunteering and counseling other Veterans regarding health issues. Moreover, during the most recent VA examination, the examiner noted that the Veteran had many other non-service connected disabilities that affected his employment. However, during evaluations the Veteran was seen as highly functional and although he had hearing difficulties, he was able to answer the examiner's questions during the evaluation, which shows that the Veteran could still communicate.  

While the Board does not wish to minimize the nature and extent of the Veteran's service-connected disabilities, the evidence of record does not support his claim that his service-connected disabilities alone were sufficient to produce unemployability from September 22, 2011 to February 10, 2014. Although they produced significant impairment, the evidence does not reflect that gainful employment was precluded during that time solely or even primarily due to his service-connected disabilities. The Veteran has not identified or submitted any competent evidence which demonstrates that his service-connected disabilities, alone, precluded him from securing and maintaining substantially gainful employment and entitled him to a TDIU from September 22, 2011 to February 10, 2014. Rather, the evidence suggests that he had significant non-service-connected disabilities which played a large part in his functional impairment but may not be considered in support of the TDIU claim prior to February 11, 2014. 

In sum, the Board finds that the Veteran's service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment in a position in a quiet environment with some accommodations prior to February 11, 2014. Moreover, no healthcare professional is on record as opining that the Veteran was precluded from substantially gainful employment as a result of service-connected disabilities alone from September 22, 2011 to February 10, 2014. 

After a review of the evidence of record, the Board finds that the claim for entitlement to a TDIU prior to February 11, 2014 is not warranted. When considered in association with his educational attainment and occupational background, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation from September 22, 2011 to February 10, 2014. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As a final matter, the Board notes that as of February 11, 2014, the Veteran's service connected bilateral hearing loss was rated as 100 percent disabling. The Board thus finds that the Veteran's claim for entitlement to a TDIU for the period on and after February 11, 2014 is now moot. The Board notes that the Veteran is not service connected for another disability rated at 60 percent or more. Therefore, a separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more that could warrant entitlement to special monthly compensation is not applicable. 38 U.S.C.A. §1114 (s), Bradley v. Peake, 22 Vet. App. 280 (2008).


ORDER

Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) from September 22, 2011 to February 10, 2014 is denied.




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs