Citation Nr: 18150526 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-43 458 DATE: November 15, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran has been unable to secure or follow substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to May 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). 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 the veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Rating boards should submit to the Director of the Compensation Service, for extraschedular consideration all cases of veterans who are unemployable because of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). The Veteran contends that he is unable to work in part due to his hearing loss and other service-connected disabilities. See March 2015 VA Form 21-8940. The Veteran is service-connected for sinusitis, evaluated as 30 percent disabling since August 14, 2002; rhinitis, evaluated as 10 percent disabling since August 14, 2002; tinnitus, evaluated as 10 percent since December 3, 2004; and bilateral hearing loss, evaluated as 50 percent disabling since December 3, 2004 and 80 percent disabling since March 20, 2015. The combined evaluation for compensation was 40 percent from August 14, 2002; 70 percent from December 3, 2004; and 90 percent from March 20, 2015. The Veteran has met the requirements for a schedular TDIU for the entire period on appeal. See 38 C.F.R. 4.16(a). Therefore, because the Veteran meets the schedular criteria for TDIU for the entire period on appeal, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. During a May 2015 VA audiological examination, the Veteran reported that his hearing aids help in one-on-one situation but in crowded places he still has difficulty. He stated that he can perceive conversations but often responds differently. The examiner noted that the Veteran could communicate effectively with the evaluator. He opined that the Veteran will likely struggle in more complex listening environments such as ones with excessive background noise and stated that the Veteran may struggle to communicate on the phone and would benefit from an amplified phone. However, despite these functional limitations, the examiner opined that based on the Veteran’s hearing abilities during the examination, it is unlikely that his hearing would render him unable to obtain or maintain gainful employment. In September 2016, the Veteran’s former employer, his nephew, submitted a letter stating that he hired the Veteran to assist with basic office duties such as answering the phone, running errands, and filing documents. His nephew stated that he and others at the company found it difficult to work with the Veteran due to his hearing disability and after a couple days determined that they would not be able to use him at the company. See September 2016 Buddy Statement. An October 2016 private assessment indicated that the Veteran has profound bilateral hearing loss with poor word recognition score of 50 percent. The clinician noted that the Veteran’s hearing aids help the Veteran to a certain extent but opined that the Veteran still has significant functional disability with his hearing, in part due to his poor word recognition scores. The physician opined that the Veteran has a very hard time hearing even with hearing aids and that his degree of hearing loss would be disabling in terms of employment. See October 2016 Medical Treatment Record. The Board finds that the Veteran’s hearing loss precludes substantially gainful employment. The medical evidence reflects the Veteran has significant trouble hearing in loud environments, precluding him from engaging in physical labor. Moreover, the evidence shows that the Veteran has difficulty hearing with any type of background noise, to include in an office-setting and when speaking on the telephone. These significant limitations in communication preclude employment, as even in protected work settings, the Veteran would be expected to speak on the telephone, and clients and coworkers cannot be expected to always address the Veteran by speaking to him in an environment with very limited ambient noise. Accordingly, resolving all doubt in his favor, the Board finds that the preponderance of the evidence supports the grant of TDIU. Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt