Citation Nr: 18143530 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-39 737A DATE: October 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Since the beginning of the appellate period, the Veteran’s physical impairments caused by his service-connected disabilities have rendered him unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met, effective May 17, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1960 to January 1964. The Veteran initially requested a Central Office hearing in his August 2017 Substantive Appeal (VA Form 9). In an April 2018 statement, he withdrew this hearing request in writing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (e) (2017). Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) since May 17, 2016 The Veteran contends that he is unable to gain and maintain any type of substantially gainful employment due to service-connected disabilities. He submitted a claim for an increased rating that was received by VA on May 17, 2016 and the Regional Office (RO) inferred an informal claim for individual unemployability (IU) from the Veteran’s accompanying correspondence, but denied TDIU in October and November 2016 rating decisions. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Provision 38 C.F.R. § 4.16 (a) establishes, in pertinent part, that the following will be considered as one disability: disabilities resulting from common etiology or a single accident; and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric. Here, the Veteran is in receipt of service-connection for peripheral vestibular disorders (vertigo, related to hearing loss) at 30 percent disabling; bilateral hearing loss at 30 percent disabling; and tinnitus (related to hearing loss) at 10 percent disabling. As these disabilities have common etiology and a combined rating during the appellate period (i.e. dating from May 17, 2016) of 60 percent, the Veteran meets the schedular criteria of 38 C.F.R. § 4.16 (a) as he is considered to have one disability rated 60 percent disabling. The question for consideration is whether the Veteran can perform the physical and mental acts required by employment. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2017). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a Veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The Veteran contends he stopped working as a driver because of safety concerns resulting from his service-connected disabilities. He noted that he could not hear emergency personnel vehicles while driving or people speaking to him from behind him. He also reported an inability to concentrate and noted that severe balance issues that caused him to limit his activities for fear of falling. The Board notes that the Veteran is competent to report observable symptomatology and its effects on his daily activities. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). The Veteran’s certificate of discharge indicated he did not finish high school prior to service and the record does not reflect additional vocational training since service. He has reported that he worked as a driver for over 26 years prior to resigning in 2007. In May 2016, the Veteran submitted statements from previous employers who stated that they had to release him from employment due to difficulties presented by the Veteran’s severe hearing loss, tinnitus, and vertigo. One former manager noted the Veteran’s hearing difficulties, coupled with his dizziness and balance issues, caused a “dangerous” situation for both the Veteran and the company. These statements are competent and credible regarding their observations of the Veteran’s hearing and vertigo disabilities, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, supra. At the June 2016 VA medical examination for bilateral hearing loss and tinnitus, the examiner noted the functional impact of the Veteran’s disability included hearing loud cricket-like sounds, difficulty sleeping, difficulty concentrating, and difficulty understanding what people are saying. At the June 2016 VA medical examination for vestibular disorders, the examiner noted the functional impact of the Veteran’s vertigo disability included being “very unstable on his feet.” The examiner also noted the Veteran’s disability picture was only treated by hearing aids. Subsequently, the Veteran attested to experiencing multiple ‘dizzy spells’ a day which can result in falling; he indicated that he had lost consciousness due to such falls in the past. The Veteran also submitted a statement from someone who had witnessed his experiencing such a ‘spell.’ In July 2018, the Veteran underwent an IU assessment by a vocational counselor, who reviewed the Veteran’s entire claims file and conducted a telephone interview with the Veteran. The examiner opined that the Veteran’s prior work history as a driver was a physically demanding but low-skilled occupation that resulted in no marketable, transferable job skills which could be applied in a sedentary occupation. He further opined the Veteran could not perform unskilled physical or sedentary occupations due to the combined effects of his service-connected disabilities, notably including low concentration, difficulty hearing, and being high-risk for falling. The counselor specifically stated that “the Veteran’s service-connected peripheral vestibular disorder in and of itself prevents him from securing and following any form of substantially gainful occupation, including sedentary work” and noted that “his hearing loss and tinnitus certainly contribute to his total unemployability as well.” Given the medical and lay evidence of record regarding the Veteran’s work history and the physical impairments resulting from his service-connected disabilities, the Board herein affords him the benefit of the doubt and grants TDIU. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel