Citation Nr: 1804942	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  16-03 712	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. C. King, Associate Counsel






INTRODUCTION

The Veteran had honorable active duty service with the United States Navy from March 1960 to August 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

The evidence before the VA consists of an electronic record located in the Veterans Benefits Management System (VBMS)/Virtual VA.

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).


FINDINGS OF FACT

The Veteran's service-connected bilateral hearing loss did not preclude him from securing or following substantially gainful employment for the period of February 20, 2013, through April 22, 2015.

The Veteran was evaluated at 100 percent for service-connected bilateral hearing loss from April 23, 2015; entitlement to a TDIU thereafter is moot.


CONCLUSION OF LAW

The criteria for a TDIU have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19.




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Appellant has not raised any procedural arguments regarding the notice or assistance provided for his claim. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Analysis

The Veteran contends that he is entitled to a TDIU evaluation as a result of his service-connected bilateral hearing loss. 

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16.

A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 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. 

"Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

In an April 2015 VA form, The Veteran reported having left his last job due to his disability. The Veteran reported that his hearing loss prevented him from driving commercially for anyone, and that he was unable to pass a physical. The Veteran reported that he became too disabled to work as of January 2010, and that he did not try to obtain employment after becoming too disabled to work. The Veteran reported having completed high school, with no additional training or education. He reported having last worked full-time in October 2006, and a highest-earning year in 1986, when he worked as a supervisor for an automobile manufacturer.

The credible evidence of record indicates that the Veteran worked in full-time employment from approximately June 2006 to October 2006, at which time he requested to move to part-time employment. The Veteran then worked for approximately one more month prior to resigning. The Veteran subsequently worked as a part-time per-diem vehicle test driver from approximately July 2008 to August 2009 for a different employer, at which point he was laid-off. 

In his January 2014 correspondence, the Veteran reports having had chronic ear infections that ultimately required tubes for drainage, and surgery in 2007 due to severe infection. The Veteran reported recurrent ear infections, the last one four months prior to the correspondence.

The Veteran was afforded two VA examinations to evaluate his hearing loss. In the report accompanying a July 2014 VA audiology examination, the examiner's noted impression of the right ear was severe to profound mixed hearing loss with very good (94 percent) word recognition ability. The examiner's noted impression regarding the left ear was profound asymmetric mixed hearing loss with poor word recognition ability (speech awareness only). The examiner noted that the hearing loss impacted the Veteran's ability to work, and noted the Veteran as having reported the impact as "Without my hearing aid I don't hear anything. With my hearing aids on I do okay one to one, but in a group, forget it. I use a ComPilot FM to help out."

The second VA examination in July 2015 documented an 8 percent speech discrimination score in the Veteran's right ear, and a 0 percent speech discrimination score in the left. The Veteran was noted as having reported that he could not hear any conversation without his hearing aid, and needed to lip-read and use written methods to communicate with others. The examiner noted that the Veteran would have difficulty hearing any conversation, and that his clarity of speech would be limited no matter how loud the sound was due to poor word recognition ability. The examiner opined that the Veteran may have difficulty understanding speech, especially with competing background noise, and that telephone use and customer service jobs that require communication with the public would be particularly difficult. The examiner also opined that the Veteran should not be employed in positions with high levels of noise exposure, in order to conserve his remaining hearing. The examiner opined that the hearing loss may significantly affect the Veteran's vocational potential or limit his participation in many work and social activities.

As of February 20, 2013, the Veteran's evaluation for service-connected bilateral hearing loss met the schedular criteria for a TDIU because it was evaluated at 80 percent. His hearing loss was evaluated at 100 percent from April 23, 2015. 

As an initial matter, the Board notes that the issue of entitlement to a TDIU from April 23, 2015, is moot in light of the 100 percent evaluation. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); but also see Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In the present case, the Veteran is only service-connected for one disability. Therefore, potential entitlement to special monthly compensation (SMC) would not arise under 38 U.S.C.A. § 1114.  

Regarding entitlement to a TDIU for the period prior to April 23, 2015, the Board finds that the issue is, as contended by the Veteran and his representative, not moot. The Veteran was evaluated at 80 percent since February 20, 2013, and thus was not awarded the maximum schedular rating. The April 23, 2015, correspondence, although treated by the RO as a separate claim for a TDIU, is more appropriately considered to be a notice of disagreement from the initial August 2014 rating decision filed within the one-year appeal period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) ("a request for TDIU [is an] attempt to obtain an appropriate rating for a disability [] as part of a claim for increased compensation."). It is noted that even had the request for a TDIU been filed outside of the time limit to file an appeal, the one-year period preceding such filing would be potentially compensable and thus still not moot. 38 U.S.C. 5110(b)(3); 38 C.F.R. § 3.400(o). 

The medical evidence does not show that the Veteran's condition would have rendered the average person with a similar work history incapable of working in substantially gainful employment. The July 2014 VA examination showed that despite significant difficulties, the Veteran could still recognize speech and could converse one-on-one. Even if the worsened hearing condition and accompanying medical opinion from the July 2015 VA examination were, arguendo, representative of the period in question (the Board does not find such to be the case), there would still be no showing of unemployability, as the examiner opined merely as to difficulties in performing jobs based predominantly on communications, such as telephone or customer service jobs, and also recommended that the Veteran not work in a high noise environment. Such limitations would not prevent the average person from securing or following substantially gainful employment. While the Board recognizes that the Veteran's hearing loss presented significant difficulties, there is no evidence that such rose to the level of precluding substantially gainful employment.

The Board acknowledges the Veteran's contention that he may have been prohibited or may not have qualified to drive a commercial motor vehicle requiring a license, registration or certification pursuant to Federal Motor Carrier Safety Administration regulations during the period in question. While the Veteran may not have met the cited requirements or qualified for any exception thereto, the Board takes notice that not all driving jobs fall under the referenced federal requirements, and the Veteran did not present any evidence that he had to surrender his non-commercial driver's license during this period, or was otherwise prohibited by law from holding other driving jobs. Finally, it is noted that even if the Veteran had been unable to drive, inability to drive does not equate to unemployability, as the average individual with equivalent hearing loss and a similar educational and employment background has other options besides driving for substantial gainful employment. 

The Board notes the February 2014 correspondence, in which the Veteran contended that his back problems limited his physical activity, and his efforts to obtain education to perform more sedentary work had been historically stymied by his service-connected bilateral hearing loss. While the Board does not discount the significant effect that hearing loss has had on the Veteran's life, the actual success of the individual applicant in overcoming his or her disability may not be considered in the evaluation. See 38 C.F.R. § 4.15. While the Veteran may have additional disabilities limiting his employability, as they are not service-connected, they also cannot be considered in evaluating limits on employability for a TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The Board concludes the functional limitations imposed by the Veteran's service-connected bilateral hearing loss did not make it impossible for him to have secured or maintained substantially gainful occupation during the period of February 20, 2013, through April 22, 2015; thus, the claim is denied. The weight of the evidence is against the Veteran's claim, and accordingly, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 53.


ORDER

Entitlement to a TDIU is denied. 



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs