Citation Nr: 1800305 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-40 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA's duty to notify was satisfied for the claim before the Board by letter dated July 2006. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran. II. TDIU Total disability ratings for compensation based upon 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 that 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) (2017). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran contends that his bilateral hearing loss prevents him from maintaining gainful employment. In December 2014, he submitted a formal claim for a TDIU, alleging that his service-connected disabilities affected his full time employment starting in 1989. The Veteran is service-connected for bilateral hearing loss, rated as 60 percent disabling; and tinnitus, rated as 10 percent disabling. The Veteran's service-connected disabilities therefore have a combined rating of 60 percent. Effective May 31, 2006, the Veteran met the threshold for a TDIU because his bilateral hearing loss and tinnitus are considered single service-connected disability because they have a common etiology and they meet the 60 percent threshold. 38 C.F.R. § 4.16(a) (2017). In an October 2014 VA audiological examination, the Veteran noted that his bilateral hearing loss impacts ordinary conditions of daily life, including ability to work in that it is hard to fall asleep and ringing confuses any speech he can hear. In December 2014, the Veteran submitted a VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability indicating that he last worked in 1989 as an Air Operations Specialist. This form also indicates that the Veteran has a high school education. In March 2015, the Veteran participated in a telephone interview in conjunction with a VA medical opinion Disability Benefits Questionnaire (DBQ). The examiner noted that the Veteran was interviewed over the telephone. "The Veteran himself answered each question posed by the examiner appropriately, and never asked the examiner to repeat or stated that he could not hear or understand the conversation. Even if assistive devices or amplification was used during the conversation, it is a testament that the Veteran, can indeed hear and understand speech. The telephone is typically a difficult communication modality for individuals with hearing loss. There are no facial visual cues available to a person when speaking in the telephone. The fact that the Veteran did so well while talking with the examiner on the telephone, is one factor used in opining this case. The examiner has reviewed this case extensively." It is in the examiner's opinion that individual unemployability for hearing loss is not warranted. In April 2015, Dr. S.A.P. provided a note stating that the Veteran is unable to work and maintain employment due to hearing loss and tinnitus. He did not, however, provide any rationale for his opinion, nor did he point to any evidence of record to support this opinion. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. In this case, the Board accords great probative weight to the March 2015 VA opinion. Specifically, the VA examiner considered the full record, to include the Veteran's complaints regarding the impact that bilateral hearing loss has had on his ability to perform his employment duties. Moreover, the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The April 2015 private opinion, however, failed to include any rationale, and as such, the Board assigns it less probative weight than the March 2015 VA opinion. The Board acknowledges the Veteran's lay statements provided in conjunction with the October 2014 VA examination. However, the Board finds that the lay assertions are outweighed by the more probative March 2015 VA medical opinion. In this regard, the opinion also largely contemplates the Veteran's assertions concerning his employment and descriptions of symptoms. The Board further notes the positive April 2015 opinion, but assigns it less probative weight because the examiner provided no rationale to support his opinion that the Veteran's bilateral hearing loss and tinnitus precluded him from working. The Veteran retired from working as an Air Operation Specialist in 1989-after working as such since 1952. The most probative evidence of record does not show that he retired due to his bilateral hearing loss and tinnitus, nor does the most probative evidence otherwise show that he is unemployable due to his service-connected disabilities. Further, the March 2015 examiner noted that the Veteran was able to participate in the telephonic examination and respond appropriately to all questions without requesting repetition. This examiner also cited to available employment accommodations for those with hearing loss and tinnitus. Finally, the Board notes that the ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). There is no question that the Veteran's bilateral hearing loss and tinnitus has some impact on his employability. The evidence, however, does not support that his bilateral hearing loss and tinnitus impact his ability to secure and follow substantially gainful employment as required under 38 C.F.R. § 4.16(a). The Board finds that the totality of the evidence does not show that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment-even taking into consideration his educational and work background. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs