Citation Nr: 18159084 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 14-28 724 DATE: December 18, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not 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 not 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 1955 to June 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2016, the Board acknowledged that a claim seeking entitlement to a TDIU under the auspices of Rice v. Shinseki, 22 Vet. App. 447 (2009) was before the Board as it related to the Veteran’s hearing loss disability, but the Board neglected to either list the issue on the title page, or to include an order for the adjudication of the TDIU claim. In October 2017, the Board remanded the issue of TDIU to the RO for development and adjudication of the issue. In October 2017, the RO notified the Veteran, pursuant to the remand directives, of the evidence necessary to substantiate his claim, and in October 2018, the RO denied entitlement to a TDIU. Thus, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). The determination as to whether a TDIU is appropriate is not based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro, 1 Vet. App. at 326. Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran’s actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the 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). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is in receipt of the following disability ratings: a 20 percent rating for bilateral hearing loss and a 10 percent rating for tinnitus effective June 15, 2010; a 70 percent rating for unspecified anxiety disorder effective July 22, 2010; and an 80 percent rating for bilateral hearing loss effective August 15, 2013; his combined rating for June 15, 2010 is 30 percent, July 22, 2010 is 80 percent, and August 15, 2013 is 100 percent. Therefore, from July 22, 2010, the Veteran met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The Veteran submitted VA Form 21-8940, which indicates that his hearing loss prevented him from securing or following substantially gainful employment. The application also indicates that the Veteran completed some college. No previous employment history was indicated on the form. Medical treatment records reflect that the Veteran received treatment and management for his hearing loss. Treatment records note that the Veteran does not wear hearing aids, but he was issued hearing aids. A record dated in April 2017 notes that the Veteran reported that he was claustrophobic and therefore, requested behind the ear hearing aids. The available medical records note that the Veteran received diagnoses of tinnitus and general anxiety disorder, but are silent for any treatment related to these disabilities. Treatment records dated in September 2016 and May 2018, reflect that the Veteran reported working part time as a realtor. In January 2017, the Veteran was afforded a VA examination in which he received a diagnosis of general anxiety disorder. The examination notes that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted symptoms of anxiety; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure or irrelevant, and difficulty in establishing and maintaining effective relationships. His wife, who was also present at the examination, reported that the Veteran had a history of impulsivity, social avoidance, and anger issues. At the time of the examination, the Veteran reported that he was unemployed. He indicated that he had an Associate’s degree, and his work history included working in a storefront business, owning and running a hotel for 34 years, and working in real estate. The examiner noted that the Veteran’s appearance was appropriate, and his hygiene and eye contact was good. His attention and concentration were noted as fair/poor and his judgment and insight were noted as fair. The Veteran’s motor and speech were normal, and his memory was intact. The Veteran’s mood was indicated as good and his affect was normal and congruent to his mood. The Veteran underwent a VA examination in February 2017 for his hearing loss disability. The Veteran indicated that he was unable to hear people speaking to him and he was unable to hold a job because he was unable to hear on the telephone. Additionally, the Veteran reported that he was unable to hear his wife speaking to him from another room. The examination notes that the Veteran was issued hearing aids in August 2013, but he indicated that he was unable to wear them due to his claustrophobia. The examiner noted that the Veteran’s audiological findings during this examination and the examination conducted in 2014 were obtained with poor reliability, but based on the Veteran’s hearing loss at the time of his 2013 audiological evaluation, the examiner indicated that it would be expected that the Veteran would have had difficulty hearing conversations and difficulty hearing on the phone with background noise. Additionally, regarding the Veteran’s tinnitus, the Veteran reported that his tinnitus gradually diminished over time and completely resolved approximately 10 years after onset; thus, tinnitus had no impact on the Veteran’s ability to work. Based on the evidence of record, it is unclear whether the Veteran is currently employed. Although the Veteran reported that he was unemployed at his January and February 2017 VA examinations, a May 2018 medical treatment note indicates that he was working part-time as a realtor. However, even assuming that the treatment note from May 2018 was an error, the Board finds that a grant of a TDIU is not warranted in the instant case. The only information that the Veteran provided on the VA Form 21-8940 was that his hearing disability prevented him from securing or following substantially gainful employment and he had been under a doctor’s care for his disability. There is no evidence of record indicating the date that the Veteran became unable to work or the cause that rendered him unable to work at that time. Moreover, the Veteran has not provided any evidence indicating how his hearing loss impacted his ability to work, other than noting at his February 2017 VA examination that he is unable to hear conversations on a telephone. However, the VA examiner noted that difficulties hearing telephone conversations would be expected if there was background noise. Moreover, the Veteran indicated that he was unable to hear his wife talking to him from another room. The evidence of record does not indicate that his hearing is so impaired as to prevent him from working. Even taking into consideration the Veteran’s service connected anxiety disorder, the Board finds that the Veteran is not precluded from obtaining or maintaining substantially gainful employment. The January 2017 VA examination indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This indicates that the Veteran’s anxiety disorder was not so severe as to preclude employment. Although the Board notes that the Veteran’s wife reported that the Veteran had a history of impulsivity, social isolation, and anger issues, there is no indication in the record that these symptoms are still present. In summary, while the Board does not doubt that the Veteran’s service-connected disabilities have some impact on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, while the medical opinions of record have concluded that there is some impact on his ability to work, there are no opinions of record which indicate that he unable to work. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim for TDIU must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel