Citation Nr: 18100331 Decision Date: 04/09/18 Archive Date: 04/09/18 DOCKET NO. 17-10 880 DATE: April 9, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Entitlement to total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is denied. FINDING OF FACT 1. The evidence of record does not show that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW 1. The criteria for entitlement to TDIU have not been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to September 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 1. Entitlement to total disability rating based on individual unemployability, due to service-connected disabilities (TDIU)] The Veteran contends that he is unemployable as a result of his service-connected disabilities. Specifically, he stated in his April 2016 Form 21-8940 that TDIU was due to his service-connected minimal to mild degenerative changes bilateral knee disability, hearing loss and tinnitus. The Board may assign a TDIU in the first instance provided that certain schedular disability ratings requirements, such as a combined disability rating of 70 percent with at least one disability rating as 40 percent rating, are met. See 38 C.F.R. § 4.16(a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16 (a) are not met). The Veteran is presently in receipt of service connection for bilateral hearing loss, rated as 50 percent disabling, degenerative arthritis of the left knee, rated as 10 percent disabling, degenerative arthritis of the right knee, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, and internal derangement of both knees, rated as noncompensable. The Veteran’s combined disability rating is 70 percent. Thus, the schedular rating requirements for a TDIU are met. 38 C.F.R. § 4.16 (a). Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that his service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Factors to be considered are a Veteran’s education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently retired. The evidence of record indicates that he completed four years of college. He was last employed as a counselor in April 2016. The Board notes that the Veteran indicated in his Form 21-8940 that he did not leave his employment due to his disability. There was also no indication that the Veteran expected to receive disability retirement benefits. In a September 2003 VA joints examination, the Veteran indicated that he had not lost any time at work due to his knee condition. In an October 2011 joints VA examination, an examiner found that the Veteran’s bilateral knee osteoarthritis prevented physically demanding work or work requiring prolonged standing or walking. In a January 2012 audio VA examination, the Veteran stated that his hearing loss impacted ordinary conditions of daily life, including his ability to work because he had trouble understanding people in difficult listening situations. However, the Veteran stated that his tinnitus did not impact him. In a January 2016 audio VA examination, the Veteran stated that his hearing loss impacted ordinary conditions of daily life, including his ability to work because he had difficulty understanding normal conversational speech with and without hearing aid use. However, the examiner determined that this would not preclude gainful employment. It was noted that the Veteran’s tinnitus did not impact his daily life or work. In a February 2016 VA cardiology note, the Veteran stated that he worked in schools as a counselor and at times did heavy exertional work such as loading a wheel barrel of wood and pushing it around. In a May 2016 knee and lower leg VA examination, the examiner determined that the Veteran’s bilateral arthritis of the knees would interfere with prolonged sitting, standing, walking and going up and down stairs. He could not sit more than 1 to 1.5 hours at a time, could not stand more than 10 to 15 minutes at a time, could not walk more than 40 yards at a time, and could not climb more than 4 to 5 steps at a time. The examiner noted that the Veteran recently retired after functioning in the capacity of a licensed clinical social worker for over 50 years with service primarily to children and adolescents. The examiner encouraged the Veteran to discuss non-surgical and non-pharmacologic methods to assist with chronic arthritic pain to possibly enhance his quality of life in regards to his pain, especially since he was opposed to medications and surgery. The Veteran ambulated without any assistive devices. In a May 2016 VA 21-4192 request for employment information form, it was noted that the Veteran worked 45 to 50 hours per week as a licensed clinical social worker. There was no time lost during the 12 months preceding his last date of employment. The Veteran’s former employer included a note which indicated that it became evident that the Veteran was having problems with his hearing ability which progressively got worse. At times he did not hear what was being said and then he misinterpreted what he thought he heard. It was mutually agreed upon that the Veteran retire after his 83rd birthday on April 29, 2016. The employer specially stated “there were no concessions/stipulations made by either party.” In a June 2016 hearing loss and tinnitus VA examination, the Veteran reported significant negative impact on his daily life, including his ability to work, due to his hearing loss. He said that he retired from working as a child psychologist in April because he could not be sure he understood his patients. The examiner noted that this statement was supported by his poor word recognition noted on his audiological exam. The Veteran’s tinnitus did not impact his daily life or ability to work. In a June 2016 VA addendum, it was noted that the Veteran had significant communication difficulties. In a July 2016 private audiological evaluation, the audiologist opined that the Veteran’s severe hearing loss and tinnitus rendered him unemployable. She stated that the Veteran’s job depended on him being able to effectively communicate with his clients. The Veteran needed to avoid working in any environment in which there was noise, which may exacerbate his hearing loss. He should also avoid any environment which required normal hearing or good speech understanding. Additionally, these limitations would prevent verbal communication face to face as well as by telephone. His condition would pose a significant safety risk in any job involving transportation/driving or being around heavy or moving machinery. Thus, the audiologist concluded that the Veteran’s service-connected hearing loss would significantly impair his employability in any job assignment with or without adaptation. The Board notes that the Veteran submitted documents showing that he retired due to his hearing loss; however, retiring from one particular job due to hearing difficulties does not necessarily preclude the Veteran from being able to work in a different setting, where he is not regularly in verbal communication with clients. Though the July 2016 private audiologist found that any work setting would be difficult for the Veteran based on his hearing loss, the Board finds this opinion less probative as there is no indication of a review of the record. Moreover, the audiologist did not comment on the Veteran’s ability to work in a clinical setting which did not involve regular verbal communication. In addition, despite the Veteran’s claims that his hearing loss made it difficult to work, the January 2016 VA examiner did not find that his hearing loss would prevent him from gainful employment. With respect to the Veteran’s knee disabilities, there was no indication that this would prevent him from employment, only that they hindered certain activities for extended periods of time. In short, the record reflects that the Veteran is a college graduate with extensive office experience; though his service-connected disabilities preclude him from working in certain settings, the record does not show that the Veteran is now precluded from employment consistent with his work experience and education. The Board has carefully considered the Veteran’s statements regarding the effects of his disabilities on his employability. Although he experiences difficulty hearing others and is limited in sitting, standing, walking or climbing stairs for an extended period, the evidence does not show that he is precluded from obtaining or maintaining substantially gainful employment consistent with his education and history. In this regard, while it is apparent that the Veteran is impaired due to hearing loss and his knees disability, the critical question is whether this would cause him to be unable to work, notwithstanding his age or other nonservice-connected problems. For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel