Citation Nr: 1756491 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-25 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 60 percent for bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1968 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In July 2017, the Veteran and his wife testified at a video conference hearing before the undersigned. FINDINGS OF FACT 1. The issue of entitlement to a rating in excess of 60 percent for bilateral hearing loss was certified to the Board on August 10, 2012, as noted in a VA Form 8. 2. In an August 31, 2012 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to a rating in excess of 60 percent for bilateral hearing loss. 3. The Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to a rating in excess of 60 percent for bilateral hearing loss have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. With reasonable doubt resolved in the Veteran's favor, the criteria for entitlement to a TDIU due to a service-connected disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.16(a), 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Rating for Bilateral Hearing Loss Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. In this case, the issue of entitlement to a rating in excess of 60 percent for bilateral hearing loss was certified to the Board on August 10, 2012, as noted in a VA Form 8. Prior to the promulgation of a decision in the appeal, the Veteran withdrew that issue for appellate consideration in an August 31, 2012 statement. As that appeal has been withdrawn, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on this issue, and it is dismissed. TDIU A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). On September 28, 2007, VA received the Veteran's request for a higher rating for service-connected hearing loss. During the course of that appeal, the Veteran reported in a February 2009 statement that he lost his job in May 2008 and unable to get a new one due to his hearing. He also noted in a July 2012 VA Form 21-4138 that he left his job in May 2008 and has been unemployed since due to frustrations with his hearing and unable to get through job interviews at stores due to his hearing difficulties. The Board finds that the issue of a TDIU was raised by the record in connection with the claim on appeal for entitlement to a higher rating for bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the date of claim for entitlement to a TDIU is September 28, 2007. The Veteran is service-connected for bilateral hearing loss at 60 percent disabling effective from September 28, 2007 and tinnitus at 10 percent disabling effective from September 27, 2001. These two service-connected disabilities are considered as one disability as they are of a common etiology (in-service acoustic trauma) and affect a single body system. See 38 C.F.R. § 4.16(a)(2), (3). As a result, the combined schedular disability rating of 60 percent meets the minimum percentage requirements for one disability for consideration of a TDIU on a schedular basis. 38 C.F.R. §§ 4.16(a), 4.25. In addition to the Veteran's statements dated in February 2009 and July 2012, as noted above, review of the record includes the following pertinent evidence. Review of Social Security Administration (SSA) records document the Veteran's limited hearing limitations in a June 2009 physical residual functional capacity assessment. It was specifically noted the Veteran has severe hearing loss, uses hearing aids, and "should be able to hear and understand clearly spoken instructions given face-to-face in a quiet environment." His claim for SSA disability benefits due to his hearing loss was denied in an October 2009 letter as it was concluded the Veteran had the ability to complete his former job as a Database Administrator (DBA). In a December 2012 statement, the Veteran explained that he was not afforded an audiological examination pursuant to his SSA claim and the denial for SSA disability benefits was based on his then VA disability rating of 10 percent for hearing loss in the right ear. Following a June 2012 VA examination for hearing loss and tinnitus, the examiner noted the "Veteran has difficulties hearing in all situations [and] [t]he severe nature of his hearing loss would most likely affect his ability to hear in most work environments." A November 2012 VA general medical examination, the examiner noted "per communication with the clinic via telephone, [the Veteran's] recent unemployment possibly related to the economy noted [and] Veteran noted to have been able to communicate via telephone normally, regarding the issue of hearing loss." Approximately two days later, in a November 2012 addendum report to the June 2012 VA examination, another examiner concluded the following: [The Veteran's] hearing loss, alone, would not render him unable to secure and maintain substantially gainful employment but the Veteran would be experiencing difficulties communicating in noisy environments and when he was unable to visualize the speaker, such as on a telephone or when the speaker is not facing him. In the August 2013 notice of disagreement the Veteran reported that, since graduation from high school in June 1965 to May 2008, he completed his Bachelor of Business Administration during evening studies and was employed full time with the interruption of his period of active service from January 1968 to October 1969. He noted that his 43 years of continuous employment verifies his past ability and desire to retain employment and that he was forced out from his employer in May 2008 because of hearing problems. The Veteran further explained his inability to secure employment as an IBM mainframe DBA due to the change in technology in that career field and his work skill set has become antiquated. Moreover, after unsuccessful attempts at obtaining employment at several grocery and retail stores, he secured a part-time technical position in 2010 that grossed less than $5000 but was never asked to return and still under the poverty threshold for one person. At a May 2015 VA examination for hearing loss and tinnitus, the Veteran reported he is not employable mainly due to his hearing loss. In a January 2016 statement, the Veteran further explained that he was forced to resign from his full-time position in May 2008 due to budget and staffing issues but he believes his "hearing handicap also helped to push him over the edge" and for the remainder of 2008 he worked part-time in Information Technology (IT) contract work. He was unable to find any type of full time work in 2010, full or part-time IT work in 2011, or gainful employment in 2012, and sought private job replacement assistance in 2014 and VA rehabilitation in 2015 without success thus far. Most recently at the July 2017 Board hearing, the Veteran discussed the functional impact of his hearing difficulties in personal and occupational settings, such as job interviews. He also reiterated his work history since separation from service in 1969. The Board acknowledges the November 2012 VA addendum report. Nevertheless, the Veteran was engaged in full-time employment from 1965 to 2008 and his duties primarily consisted of using his skill set in the technology career field. Moreover, his self-reported periods of part-time and volunteer work since 2008 have not risen to the level of substantially gainful employment. In light of the Veteran's highest level of completed education and prior work history as well as credible testimony throughout the appeal period regarding the functional impact of his hearing loss, the Board finds that the most probative evidence of record discussed above indicates his service-connected disability as likely as not renders him unable to obtain or retain substantially gainful employment. Accordingly, with resolution of reasonable doubt in his favor, the issue of entitlement to a TDIU is granted. See 38 C.F.R. §§ 3.102, 4.16. ORDER The appeal for entitlement to a rating in excess of 60 percent for bilateral hearing loss is dismissed. Entitlement to a TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs