Citation Nr: 1806977	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  17-51 836	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from February 1942 to August 1945.  VA is grateful for his honorable service to our Nation.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied a TDIU.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's service-connected hearing loss and tinnitus would preclude him from obtaining or maintaining substantially gainful employment.


CONCLUSION OF LAW

After affording the Veteran the benefit of the doubt, the criteria for a TDIU have been met.  38 U.S.C.A. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.16 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A TDIU 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 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) (2017).

Here, the Veteran is service-connected for bilateral hearing loss at 70 percent and tinnitus at 10 percent.  Therefore he meets the schedular criteria for a TDIU.

The central inquiry is determining whether a TDIU is warranted 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).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In his October 2016 TDIU application, the Veteran indicated that he had two years of high school level education.  He reported working as a laborer from 1946 to 1975.  Additional submissions show this job was for an automotive company which went out of business in 2005, and therefore information from the employer is not available.

Regarding the functional impairment associated with the Veteran's service-connected disabilities, an August 2016 VA examiner noted that hearing loss impacted the ordinary conditions of life, including work.  In the Veteran's own words, he had a very difficult time hearing and understanding.  The examiner indicated that tinnitus did not result in functional impairment.

In an October 2016 statement, the Veteran stated that his hearing loss made it impossible for him to hear instructions or be fully aware of his working conditions.  He indicated that this would be unsafe for both himself and his coworkers.

The Veteran's 70 percent rating for hearing loss and the 10 percent rating for tinnitus contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday working environment.  Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017).  See also 38 C.F.R. § 4.1 (the percentage ratings represent the average impairment in earning capacity resulting diseases and injuries and their residuals conditions in civil occupations).  Nevertheless, when viewed alongside his educational level and prior work history, the Board concludes that the Veteran's hearing loss and tinnitus would prevent him from performing the duties of his previous position as a laborer in an automotive company as well as the duties of any similar position for which he may otherwise be qualified.  In making this determination, the Board has considered the Veteran's statements regarding work safety issues, which he is certainly permitted to make based upon his 30 years of experience in such a setting.  Therefore, a TDIU is warranted.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner).


ORDER

A TDIU is granted.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs