Citation Nr: 18159930 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 18-29 622 DATE: December 20, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities, specifically his service-connected bilateral hearing loss, preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1954 to June 1956 and in the U.S. Air Force from March 1972 to March 1976 and from September 1981 to April 1985. Entitlement to a TDIU is granted, effective September 25, 2014. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, due to his service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran must generally meet specific requirements before consideration of whether the evidence demonstrates unemployability. If the Veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more, there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. In the present case, the Veteran filed a claim for TDIU in May 2016. He has met the schedular requirements for a TDIU for the entire appeal period. At the time of his TDIU claim, he was service-connected for bilateral hearing loss, rated as 60 percent disabling; purulent left chronic otitis media, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and a chronic mastoiditis condition, rated as 0 percent disabling. The Veteran’s combined disability rating as of that date was 70 percent. Currently, the Veteran’s combined disability rating is 80 percent, as he received an increase for his service-connected bilateral hearing loss in October 2016. The question that remains, then, is whether the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. 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). A Veteran need not show 100 percent unemployability to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Veteran maintains that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, specifically his service-connected bilateral hearing loss. At discharge from service, the Veteran was noted as having high and low frequency hearing loss. See November 1984 Retirement Examination. Post-service medical records indicate that this condition has progressively worsened over the years, ultimately resulting in the Veteran’s decision to retire early from his position as a supply manager in February 2007. He indicated that his hearing had worsened to the point that he had difficulties communicating effectively over the telephone. The Veteran reports that he has been unable to work since that time. In December 2008, a VA examiner observed bilateral significant sensorineural hearing loss that affected the Veteran’s ability to follow one-on-one or group conversation and his ability to enjoy watching television. At a later June 2010 VA examination, another examiner noted that the Veteran had quit his job due to significant hearing problems. The examiner reported that the Veteran’s hearing loss disability would impact his occupational activities as it would lead to “decreased concentration, difficulty following instructions, and hearing difficulties.” Further, at a more recent August 2016 VA examination, a VA examiner observed that the Veteran’s hearing loss impacted his conditions of daily life, including his ability to work, as it prevented him from being able to understand conversational speech, follow a conversation, talk on the telephone, or understand the television without the use of hearing aids. A letter from the Veteran’s private audiologist indicates that his hearing loss has progressed to the point that he has profound hearing loss in the right ear and severe-to-profound hearing loss in the left ear. The audiologist wrote that the Veteran would experience significant difficulties in his life due to his hearing loss. While hearing aids would greatly improve the quality of the Veteran’s life, the audiologist noted that the seriousness of the Veteran’s disability would significantly limit what he could accomplish. See July 2018 Private Audiologist’s Letter. The Veteran submitted a September 2018 letter from a private physician in support of his claim. The physician reviewed the relevant medical records, lay statements, medical opinions, and historical treatment records prior to rendering his opinion. He observed that the Veteran suffered severe, progressive hearing loss since his time in the service. He reported that severe to profound hearing loss has a significant impact on the individual and is associated with social isolation, depression, and apathy. The physician further noted that late onset hearing disabled patients are more psychologically damaged because they can perceive what they have lost. He also wrote that patients with severe to profound hearing loss before retirement age, like the Veteran, are expected to earn 50 percent to 70 percent of their non-hearing-impaired peers. The physician cited a more recent study that showed that patients with hearing loss had nearly two times higher odds of being unemployed or underemployed than individuals with normal hearing. He concluded that the Veteran’s disability had progressed to the point that he was no longer able to secure gainful employment as of February 2007, and, that, given the progressive nature of the disability, it would be unrealistic to suggest that he would have been able to function in any gainful occupation since that time. The Board finds that the preponderance of the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected bilateral hearing loss is of such nature and severity as to preclude substantially gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a Veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The record reflects that the Veteran retired early due to his inability to effectively communicate on the telephone and had not worked in any capacity since that time. The Board affords significant probative value to the Veteran’s private audiologist’s opinion as well as that of the private physician. His private audiologist has treated him since 2001 and is aware of the functional limitations he faces. The private physician reviewed the pertinent lay and medical records prior to providing his opinion. Both the private audiologist and the private physician determined that the Veteran’s service-connected hearing loss would cause significant barriers to his ability to secure and follow gainful employment. Their opinions are in step with observations made by VA examiners throughout the years, who have concluded that the Veteran’s disability adversely impacted his ability to communicate, follow instructions, and concentrate, skills necessary at any place of employment. In sum, the medical evidence of record, including reports from VA examiners, demonstrates that the Veteran is unable to work due his service-connected bilateral hearing loss and its profound effects on conversation and concentration. Therefore, in light of the totality of the record and giving due consideration to the Veteran’s descriptions of the functional effects of his service-connected bilateral hearing loss on his occupational ability, the Board finds that a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush