Citation Nr: 1805353	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  17-55 471	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Juliano, Counsel

INTRODUCTION

The Veteran served on active duty from January 1951 to October 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note 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

1.  The Veteran is service connected for bilateral hearing loss (80 percent from February 13, 2008, 50 percent from February 17, 2010, 80 percent from April 23, 2013, and 70 percent from July 1, 2017); and tinnitus (10 percent); his combined rating is 80 percent from April 23, 2013, and 70 percent from July 1, 2017.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran's service-connected bilateral hearing loss is shown to render him unable to secure and follow all forms of substantially gainful employment.


CONCLUSION OF LAW

The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.150, 3.155, 3.160, 3.340, 3.341, 4.16, 4.25, 4.26 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist 

The Veteran's claim of entitlement to a TDIU has been granted herein, as explained below.  Therefore, the Board finds that any issue as to the duties to notify and assist are moot.  

II.  Analysis

A total rating based on unemployability may be granted if a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities."  38 C.F.R. § 4.16 (2017); see also 38 C.F.R. §§ 3.340(a), 3.341(a) (2017).  If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a) (2017).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2017).  

Medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity, while the rating agency is responsible for interpreting reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.  See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

The Veteran served in the U.S. Air Force from January 1951 to October 1954.  He claims entitlement to a TDIU.  Specifically, the Veteran alleges that he is no longer able to work due to his service-connected bilateral hearing loss.  See Form 21-8940, July 2015.

The Veteran is service connected for bilateral hearing loss (80 percent from February 13, 2008, 50 percent from February 17, 2010, 80 percent from April 23, 2013, and 70 percent from July 1, 2017); and tinnitus (10 percent).  His combined rating is, most recently, 80 percent from April 23, 2013, and 70 percent from July 1, 2017.  As such, the schedular criteria for a TDIU are met for the entire period on appeal.  See 38 C.F.R. § 4.16.

Around August 2016, the Veteran obtained a cochlear implant in his left ear.  See, e.g., VA Examination report, September 2016.

The most recent September 2016 VA examination report shows that pure tone threshold averages were as follows:



Hertz (decibels)

500
1000
2000
3000
4000
Avg
RIGHT
65
55
60
60
70
61
LEFT
105+
105
105+
105
100
104

Speech recognition using Maryland CNC word lists was 44 percent for the right ear.  The examiner opined that speech recognition testing was inappropriate for the left ear.

A private audiologic test in November 2017 showed pure tone threshold averages as follows: 


Hertz (decibels)

500
1000
2000
3000
4000
Avg
RIGHT
65
75
75
75
75
75
LEFT
 85+
90+5
100+
100+
95+
96+

Speech recognition using Maryland CNC word lists was 56 percent for the right ear.  The examiner opined that speech recognition testing could not be accomplished for the left ear.

The Board also notes that the Veteran has reported a post-service employment history of working for 31 years as a classroom instructor for McDonnell Douglas.  See, e.g., Letter, Dr. A.B., September 2010 (upload date 4/10); VA examination report, September 2015.  Subsequently, he reported teaching driving school, but that he had difficulty hearing people and therefore quit.  See VA examination report, September 2015.  He also reported working from 1988 to 1993 as a self-employed window inspector and repairer.  See, e.g., Form 21-8940, January 2010.

The Board acknowledges that there are conflicting medical opinions of record as to whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected bilateral hearing loss.

A September 2015 VA examination report shows the VA examiner opined that with amplification and reasonable Americans with Disabilities Act (ADA) accommodations, the Veteran's hearing loss alone should not significantly affect the Veteran's vocational potential or limit participation in most work activities, and that employment would be more than feasible in a loosely supervised environment.  The Board is cognizant, however, that the Veteran subsequently obtained a left ear cochlear implant in 2016, as opposed to mere amplification/hearing aids.

The most recent September 2016 VA examination report shows the examiner opined regarding occupational impairment that the Veteran reported difficulty hearing with crowds or background noise, but did not further elaborate

A November 2017 letter by J.P., a private audiologist, which is accompanied by a DBQ with test results noted above, shows J.P. opined that the Veteran's profound bilateral hearing loss renders him unemployable, with or without amplification.  She explained that he needs to avoid working in any environment in which there is any noise that may exacerbate his hearing loss, and that his hearing loss prevents verbal communication face-to-face as well as by telephone, even with use of amplification.  She further opined that his hearing loss would pose a safety risk in any job setting involving transportation/driving, or being around heavy or moving machinery.   

As shown above, there are conflicting medical opinions as to the level of the Veteran's occupational impairment due to his service-connected bilateral hearing loss.  In this case, the Board has no reason to prefer one medical opinion over the other.  The November 2017 DBQ and opinion letter by the other private audiologist, J.P., shows she opined that the Veteran's "profound" bilateral hearing loss renders him unemployable, with or without amplification.  The Board notes again that the Veteran's occupational history was as an instructor for over 30 years, followed by window inspection and repair, and the November 2017 letter by the private audiologist J.P., which is accompanied by a DBQ, shows she opined that the Veteran's hearing loss prevents verbal communication face-to-face, even with use of amplification, and that it poses a safety risk being around heavy or moving machinery.  Therefore, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected bilateral hearing loss for the entire period on appeal and, therefore, resolving all doubt in the Veteran's favor, the Board will grant the claim. 

ORDER

Entitlement to a TDIU is granted.


____________________________________________
J.W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs