Citation Nr: 1806556 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-31 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION 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) (West 2014). The Veteran had active service from December 1942 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction has been transferred to the RO in Phoenix, Arizona. In the appellant's September 2014 substantive appeal (VA Form 9), he requested a Board hearing. However, in correspondence received in September 2016, he indicated that he wished to waive his request for a Board hearing. FINDING OF FACT Resolving doubt in favor of the Veteran, his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. Applicable Legal Criteria VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). In reaching such 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, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran asserts that a TDIU is warranted. Specifically, he contends that he is unemployable due to his service-connected PTSD and hearing loss disability. He also indicated that he is unemployable due to age. The Veteran is service connected for PTSD, rated as 50 percent disabling; bilateral hearing loss, rated as 50 percent disabling; bilateral tinnitus, rated as 10 percent disabling; scars on hands, rated as noncompensable; and malaria, rated as noncompensable. His combined disability rating is 80 percent. See 38 C.F.R. § 4.25 (2017). Thus, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Because the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of a TDIU, the remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. In July 2012, the Veteran submitted a VA Form 21-8940 (Veterans Application of Increased Compensation Based on Unemployability) on which he claimed that he was unemployable due to his PTSD, hearing loss disability, and age. He reported that he completed high school and had not had any education or training since he became too disabled to work. In a July 2012 VA medical opinion for the Veteran's service-connected malaria, the examiner noted that the Veteran developed malaria in March 1946 and had no residuals. See July 2011 Infectious Disease VA Examination Report. He opined that the Veteran is fully employable regarding his service connected malaria, which is inactive without any residual. The Veteran underwent a VA audiological examination in July 2012. Following evaluation of the Veteran, the examiner opined that hearing loss and tinnitus, in and of themselves, would not preclude the Veteran from being gainfully employed. She indicated that an environment with reduced background noise may be beneficial. The Veteran was also provided a VA examination in July 2012 for his service-connected PTSD. The examiner noted the Veteran last worked 1969. He stopped working due to a physical health problem. He determined that the Veteran's PTSD would have only a mild to moderate impact in a work setting. In an addendum opinion dated in July 2012, the examiner reported that the Veteran's service-connected PTSD symptoms such as irritability and anxiety, would have a mild to moderate impact on work performance and would lead to reduced productivity, but not total occupational impairment. He again noted that the Veteran stopped working due to physical health problems. An additional medical opinion regarding the Veteran's service-connected malaria was obtained in April 2013. The examiner indicated that on the basis of malaria, there was no limitation of full employment without restrictions. In a December 2013 opinion from the Veteran's treating physician, it was reported that the Veteran was not employable due to advanced age, hypertension, gastroesophageal reflux disease (GERD), atrial fibrillation, and irritability with people. In the September 2014 substantive appeal, the Veteran indicated that the combined effects of his service-connected disabilities on his employability were not considered. Thereafter, in December 2017, the Veteran's representative submitted the report of a vocational evaluation. The vocational expert opined that the Veteran did not obtain any work skills from his past work, and in any event, work skills are considered obsolete after 15 years. Therefore, the Veteran is restricted to entry level unskilled work. This work has close supervision, deadlines, and strict attendance requirements. He opined that the Veteran is unable to communicate with anyone unless there is no background noise and he becomes agitated and irritable if he does not understand or hears the wrong word. The expert determined that this is not a situation that could operate in any workplace. He noted that the Veteran also suffers from PTSD symptoms, which include lack of sleep due to dreams and consequent need for rest and naps during the day. He opined that this need cannot be accommodated in unskilled employment. Further, the Veteran's tinnitus is sometimes so bad that he must rest on his chair with his eye closed until the ringing goes away. He also has an exaggerated startle response time and jumps when he is not expecting contact. The expert concluded that in light of the foregoing, it is as likely as not that the Veteran is unable to secure or follow gainful occupation because of his service-connected disabilities. In a December 2017 statement from the Veteran's son, he reported that the Veteran cannot have a conversation via phone because he cannot hear the person on the other end. He also has difficulty hearing people even with the use of his hearing aid. He further noted that the Veteran's hearing loss disability made communicating extremely difficult. Additionally, his PTSD symptoms cause difficulty sleeping at night, which means the Veteran needs to sleep during the day. It also causes issues with hygiene. In a December 2017 statement from the Veteran, he reiterated the reports of difficulty hearing and the effects of his PTSD symptoms. Applying the criteria set forth above to the facts in this case, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities have precluded him from substantially gainful employment; therefore, assignment of a TDIU is warranted. In so finding, the Board acknowledges the VA examiners' opinions that the Veteran's malaria and hearing loss did not impact his employability and that his PTSD caused only reduced reliability. The Board also observes that the Veteran's treating physician indicated that non-service-connected disabilities and age impacted the Veteran's employability. As detailed above, however, the vocational expert opined that the combined effects of the Veteran's service-connected hearing loss and PTSD precluded a gainful occupation. Such determination does not appear to have included consideration of the Veteran's age or non-service-connected medical conditions. Further, the Veteran and his son provided credible statements regarding the impact of the Veteran's hearing loss disability and PTSD symptoms which are consistent with the findings of the vocational expert. In light of the foregoing evidence, and resolving all doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(b). ORDER Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs