Citation Nr: 18144697 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-12 075 DATE: October 25, 2018 ORDER Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to May 1981. This matter is on appeal from an April 2014 rating decision. An August 2017 decision by the Board of Veterans’ Appeals (Board) denied entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the August 2017 Board decision that denied entitlement to a TDIU, and remanded the matter for action consistent with terms of the JMPR. Lastly, the Board notes that in its August 2017 decision, the issue of entitlement to a dependency allowance for T. M was remanded for further development. Regarding that claim, in a July 2018 rating decision, entitlement to a dependency allowance for T. M. was established. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to a TDIU 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 as totally disabled. 38 C.F.R. § 4.16 (2018). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2018). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2018). The Veteran contends that his service-connected hearing loss precludes him from securing and following a substantially gainful occupation consistent with his education and work experience. At the time the Veteran filed his claim for entitlement to a TDIU in July 2013, his service-connected hearing loss was rated 70 percent disabling, thus meeting the criteria for schedular consideration of a TDIU. 38 C.F.R. § 4.16(a). The evidence of record reflects the Veteran completed high school. The majority of his nearly 30 years of professional experience is in mechanics, roofing, and computer aided drafting (CAD). The Veteran was afforded a VA examination for his hearing loss in August 2011. The Veteran reported difficulty hearing in both noisy environments and in small groups, that speech lacked clarity for him in quiet environments, and that he had difficulty hearing through a telephone. The examiner found the Veteran’s hearing loss to be significant and that it may negatively impact his ability to hear in virtually all listening situations, to include areas with background noise present or if the Veteran was more than 3 feet from someone speaking to him. The examiner noted the Veteran’s hearing loss contributed to difficulty following instructions. The Veteran underwent an additional VA examination for his hearing loss in April 2014. He reported that he must look directly at the person speaking to him to hear, that he has difficulty hearing in noisy environments, and that he cannot understand speech through a telephone. In support of his claim, the Veteran submitted an August 2018 opinion from a vocational expert, Ms. S. G., who highlighted the evidence surrounding the Veteran’s service-connected hearing loss, as well as any functional limitations resulting from this disability. Ms. S. G. opined that the Veteran has been unable to secure and maintain substantially gainful employment because of his service-connected hearing loss. She indicated that the Veteran’s employment history includes a background in aircraft mechanics, roofing, a supervisor in a metal shop, and a CAD operator. The Veteran’s duties over the course of employment from 2004 to 2010 as a CAD draftsman required telephone communications, working at noisy construction sites, and attending meetings. His hearing loss resulted in performing too many jobs errors, which contributed to poor productivity and ultimately ended with the Veteran being let go in May 2010. Although the Veteran obtained a 3-month contract as a CAD technician in 2011, one month into the job, he was let go due to his hearing problems. During his telephone interview with Ms. S. G., the Veteran reported that his current symptoms include hearing impairment in all listening situations, to include noisy environments and small groups. The Veteran indicated that he is not experienced in Microsoft Word or Excel, but that he attempted to learn Excel but found it too complicated. In support of her opinion, Ms. S. G. indicated that the Veteran’s employment history shows his hearing impairment at work led to difficulty hearing instructions from co-workers, resulting in costly project errors. Although the Veteran wears hearing aids, he could not rely on them, as they did not function well in areas with background noise present. Ms. S. G. stated that, due to the Veteran’s job-specific educational background and lack of knowledge of office computers, along with his inability to hear and communicate with others in a reliable manner, he had very limited transferable skills. She concluded that the Veteran’s hearing impairment was a safety hazard in most physical occupations, and preclude him from working reliably and productively in any environment where verbal communication is required. Upon review of the record, the Board finds that entitlement to a TDIU is warranted. Significantly, the Board finds the August 2018 vocational expert opinion by Ms. S. G. to be the most probative evidence of record. Based on her review of the Veteran’s claims file, telephone interview with the Veteran, and along with consideration given to the Veteran’s educational and employment background, Ms. S. G. opined that the Veteran has been unable to secure and maintain substantially gainful employment because of his service-connected hearing loss. This opinion is supported by medical evidence of record documenting the Veteran’s reported symptoms regarding his hearing loss since he left full-time employment in May 2010, to include hearing impairment in all listening situations, in both noisy environments and small groups, even when wearing prescribed hearing aids. While the Veteran completed high school and training years later in CAD, the vocational expert found that the Veteran lacked the necessary skills to perform sedentary work. Specifically, Ms. S. G. opined that the Veteran had limited transferable skills due to his specific employment background and lack of knowledge of computer software, specifically Microsoft Word and Excel, despite his prior attempts to learn such software. While sedentary employment has not been ruled out by the August 2011 and April 2014 VA examiners, the Board is unaware of any sedentary jobs that the Veteran could perform given his level of hearing impairment, his educational background and training, as well as his employment history, as a position as a CAD draftsman would require communicating with contractors at on-site meetings or over the telephone, as well as working at construction sites, which are often noisy. In light of the Veteran’s occupational background and the functional limitations described, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of his service-connected hearing loss. Accordingly, the Board finds that entitlement to a TDIU is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel