Citation Nr: 18154707 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-39 103A DATE: November 30, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1952 to August 1954. This matter is on appeal from an April 2015 rating decision. 1. Entitlement to a TDIU due to service-connected disabilities is granted The Veteran reports that he was last employed as a truck driver for a company in November 2002. See November 2018 Appellate Brief. He reports that he has not been able to work since November 2002 because he failed his hearing examination for MCA. Id. Prior to that, he had his own truck and drove that from 1990 to 1999. See December 2015 Veteran’s Statement. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). In this case, the Veteran has been in receipt of a 70 percent evaluation for bilateral hearing loss since November 18, 2014, the date of his increased rating claim. See August 2018 Rating Codesheet. Thus, the Veteran has met the schedular criteria for a TDIU. Based on the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. In the January 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire, the VA examiner reported that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran was a truck driver who was laid off from his job due to that hearing loss. See January 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. In his August 2015 Notice of Disagreement, the Veteran stated in relevant part: My hearing has gotten so bad that I was unable to secure my CDL to be able to drive trucks. I was a driver who hauled mail through a private contractor for the US Postal Service. I drove mail routes from Lincoln, NE to Des Moines, IA and routes from IA to MN and IA to other parts of Nebraska. I was stopped from driving once my hearing got so bad, as I couldn’t pass the required hearing test.... Even with hearing aids I have trouble hearing clearly. I am unable to hear the radio dispatch and I also have trouble hearing hazards on the road. I have driven my whole life after my service and now due to my hearing loss I am unable to do my normal line of work.... August 2015 Notice of Disagreement. In a December 2015 Statement, the Veteran stated in relevant part: I did not lose any time from work until my employer [] had all of its truck drivers take a hearing exam. After this exam I was told that [I] could no longer drive for them because of my hearing. December 2015 Veteran’s Statement. In a January 2017 Medical Opinion by Dr. R. W., Dr. R. W. opined that the Veteran cannot work due to his service-connected disabilities. Dr. R. W. stated that the Veteran’s hearing loss and tinnitus are significant and present serious impediments in everyday life, including obtaining and maintaining employment. See January 2017 Medical Opinion by Dr. R. W. (Continued on the next page)   The Board notes that the Veteran’s credible lay statements as to the symptomatology of his service-connected disabilities and the opinion from Dr. R. W., who stated that it is his medical opinion that the Veteran cannot work due to his service-connected disabilities, collectively support a finding that the evidence is in equipoise that the Veteran is unable to secure and follow a substantially gainful occupation by means of his service-connected disabilities. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to TDIU is warranted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel