Citation Nr: 18160205 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 16-21 031 DATE: December 27, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1960 to May 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more 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 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for bilateral hearing loss, rated as noncompensable prior to February 11, 2014, and as 40 percent disabling thereafter. He is also service connected for tinnitus, rated as 10 percent disabling, effective February 11, 2014. The Veteran’s combined evaluation is 50 percent disabling, effective February 11, 2014. Thus, he has not met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) at any time during the appellate period. Nevertheless, the Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233 (2015). The regulation requires that, in cases of Veterans who evidence suggests are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements of 38 C.F.R. 4.16(a), the case is to be submitted to VA’s Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. 38 C.F.R. § 4.16(b). In his claim for a TDIU, the Veteran stated that he was unable to work because of hearing loss and tinnitus. He indicated that he last worked as a driver from 2007 to 2014, on a full-time basis. With respect to his education, he completed high school, and received additional training as a chef. See VA Form 21-8940, dated June 11, 2014. The Veteran also stated that, in addition to his hearing loss, his medical issues with his eyes, back, right foot, bowels, and prostate make it impossible to hold down any form of employment. See December 2015 Statement in Support of Claim. On VA examination in August 2014, the Veteran reported his hearing loss made his life more difficult. With respect to tinnitus, he reported it could be distracting and confusing. See August 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). In support of his claim, the Veteran submitted a statement by his primary care physician. The physician opined that the Veteran’s multiple medical conditions precluded his ability to work full time. The physician further stated that, considering the Veteran’s age and medical problems, he considers the Veteran to be disabled and unemployable. See February 2016 UMass Memorial Statement. On VA audiological examination in May 2017, the Veteran reported that he struggles to hear during conversations, especially in a group setting, and can only hear half of what his wife says. He also expressed concern that he would not be able to work effectively with his hearing loss. With respect to tinnitus, the Veteran reported experiencing discomfort and distraction. The examiner noted that the Veteran would have significant difficulty in an occupation which required communication in adverse listening conditions or over the telephone, or in an occupation where safety was dependent on good hearing. The examiner opined that hearing loss alone should not impact the Veteran’s employment, so long as the occupation is in a quiet environment with minimal communication with others. See May 2017 Hearing Loss and Tinnitus DBQ. At the August 2018 Board hearing, the Veteran testified that he had most recently worked as a bartender, but had to stop after a few days as he was unable to hear. He also testified to working as a driver, but ultimately had to stop after he failed the Department of Transportation examination due to his hearing loss. Prior to working as a driver, he owned and operated a restaurant and a used car lot. His wife testified that the Veteran’s hearing has deteriorated over the last few years, and that she has to repeat herself a lot, or repeat what others have said in a group setting. She also testified to the Veteran being unable to hear the television, a phone ringing, or emergency vehicles when driving. See August 2018 Hearing Transcript. While acknowledging that the Veteran has service-connected symptoms such as difficulty hearing and understanding speech and ringing in his ears, the weight of the persuasive evidence of record does not demonstrate his service-connected disabilities alone are of such severity as to preclude his participation in all forms of substantially gainful employment for which he is qualified. Although the Veteran could not maintain his job as a driver because of his hearing loss, he also testified to previously owning a restaurant and working as its bookkeeper over the course of 18 years. The Veteran has not asserted, nor is there any evidence of record indicating, that his hearing loss and tinnitus interfered with his ability perform this job or that it would interfere with his ability to perform a similar job. To the extent that the Veteran asserts his medical issues with his eyes, back, right foot, bowels, and prostate prevent him from working, the Board notes that his private physician opined that the Veteran was unemployable due to his medical problems. As stated above, a TDIU may only be granted for service-connected disabilities. The Veteran is only service-connected for bilateral hearing loss and tinnitus. Accordingly, the Board finds that the February 2016 private physician opinion carries little probative value. The May 2017 VA examiner provided an opinion to the effect that the Veteran’s hearing loss and tinnitus would not prevent him from working in the right environment. This opinion is probative as it is consistent with the evidence of record, which shows the Veteran was previously able to work full time as a bookkeeper. The Board finds that the most probative evidence of record does not support the conclusion that the Veteran, having not met the threshold percentage requirements for a schedular TDIU under 38 C.F.R. 4.16(a), is unemployable by reason of his service-connected disabilities, and referral of the issue to the VA’s Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis is not required. 38 C.F.R. § 4.16(b). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel