Citation Nr: 18140087
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 17-27 312
DATE:	October 2, 2018
ORDER
Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted.
FINDING OF FACT
The evidence of record indicates that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience.
CONCLUSION OF LAW
The criteria for entitlement to TDIU have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.341, 3.401, 4.16 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran honorably served on active duty in the United States Air Force from July 1960 to April 1964.
Entitlement to a total disability rating for compensation based on individual unemployability (TDIU)
The Veteran has submitted evidence in which he contends that his bilateral hearing loss prevents him from maintaining employment. 
A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more.  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).
The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000).  A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
The Veteran has established service connection for bilateral hearing loss, rated 80 percent disabling, and tinnitus, rated 10 percent disabling, effective January 13, 2014. The Veteran’s combined disability rating is 80 percent. Therefore, he has met the minimum percentage requirements for an award of a TDIU set forth in 38 C.F.R. § 4.16(a), as of January 13, 2014.  The remaining inquiry is whether he was unable to secure or follow substantially gainful employment due to his service-connected disabilities.
The Veteran is currently unemployed. He last worked in June 2015 as a flag car driver for a large vehicle escort service. In support of his claim, the Veteran submitted an August 2016 letter by his former employer outlining the decision to terminate his employment due to his severe hearing loss. Prior to working for the escort service, the Veteran worked as a contractor in the construction industry until late 2008. The Veteran submitted tax returns for the last five years he was employed. While, the Veteran reported $3,789 in income in 2016, that is not sufficient to show substantially gainful employment. The Veteran noted this discrepancy in his Form 9, stating that he was sometimes paid for his work “long after the fact.”  The Board finds that this evidence indicating he was unable to obtain or maintain substantially gainful employment due to his service-connected bilateral hearing loss.
Accordingly, the Veteran meets the statutory criteria because his hearing loss is rated as 80 percent disabling, and, as a result of this disability, he is prevented from obtaining and maintaining substantially gainful employment consistent with his educational and vocational abilities. Therefore, he is entitled to TDIU. 
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. N. Fournier, Law Clerk