Citation Nr: 20007933 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-10 880 DATE: January 30, 2020 ORDER Entitlement to total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from August 1953 to September 1956. Legal Criteria A total disability rating 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 the result of service-connected disabilities. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For purposes of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. However, the observations of these professionals may provide probative evidence as to a veteran’s ability to obtain and maintain employment consistent with his or her education and experience. 1. Entitlement to total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) Based upon a thorough review of the Veteran’s file, the Board finds that the probative evidence of record shows that the combination of the Veteran’s service-connected disabilities precludes him from securing and following substantially gainful employment, consistent with his education and occupational background. The Veteran has predominantly worked as a clinical social worker. This job, and virtually any other job, require the Veteran to be able to attend a normal eight hour work day, as well as interact and communicate effectively with others. The Board observes that the Veteran retired from his job as a social worker due to difficulties related to his hearing loss. The Veteran is currently rated at 70 percent by way of a rating decision dated January 2016. Specifically, the Veteran’s evaluation for bilateral hearing loss (DC 6100) was increased to 50 percent effective October 27, 2015. The Veteran has an evaluation of 10 percent for both right and left knee disabilities including a bilateral factor, and 10 percent for tinnitus also including a bilateral factor. As such, the Veteran meets the schedular criteria for entitlement to TDIU. 38 C.F.R. § 4.16. The Veteran received a VA examination in May 2016 pertaining to his service-connected bilateral knee disabilities. The examiner opined that the Veteran’s knee disabilities would impact his ability to work by interfering with prolonged sitting, standing, walking, and going up or down stairs. Specifically, the examiner noted that the Veteran would be unable to sit for more than 1.5 hours, stand for longer than 10 to 15 minutes, walk farther than 40 yards, or climb more than 4-5 steps. In a November 2019 VA examination regarding the severity of the Veteran’s service-connected bilateral knee disabilities, the examiner noted that the Veteran has pain with prolonged weight bearing, but was able to ambulate to the exam room, move from sitting to standing, sit on the exam table, and move from supine to sitting to standing without assistance. The Veteran was noted to utilize a cane for mobility and experienced about 7 to 10 days relief from knee pain after receiving a steroid injection. Regarding the Veteran’s service-connected bilateral hearing loss, VA treatment records indicate that the Veteran experiences significant communication difficulties. The Veteran received a VA examination regarding the severity of his service-connected bilateral hearing loss in January 2016. In the examination report, the examiner noted that the Veteran experienced difficulty understanding normal conversational speech both with and without hearing aids. In a subsequent VA examination dated June 2016, the examiner noted that the Veteran exhibited poor word recognition. The examiner opined that the poor word recognition supported the Veteran’s report of his hearing loss causing significant negative impact on ordinary conditions of daily life. Specifically, the Veteran reported that he retired from being a child psychologist because he could not be sure he understood his patients. The Veteran submitted a private medical opinion in July 2016 regarding the impact of his hearing loss on his ability to seek gainful employment. The private audiologist opined that the Veteran’s service-connected hearing loss would “significantly impair his employability in any job assignment with or with adaptation.” Pursuant to the September 2019 Board decision, the Veteran received another VA examination regarding the current severity of his service-connected bilateral hearing loss in November 2019. The examiner opined that the veteran’s hearing loss would make it difficult to hear, specifically in noisy situations or situations where background noise is present. The examiner also noted that the Veteran would have difficulty hearing speech over the phone. The examiner further opined that the Veteran would likely need hearing aids and assistive devices as well as reasonable accommodations in order to participate in the workplace. However, the examiner failed to address the impact of the Veteran’s present use of hearing aids. Nor did the examiner address the opinions expressed by the June 2016 VA examiner and the July 2016 private audiologist regarding the Veteran’s difficulty with regards to word recognition and the ineffectiveness of hearing aids or assistive devices. Accordingly, the Board finds the November 2019 VA examination to be inadequate for rating purposes. (Continued on the next page)   From the above analysis, the Board finds that the January and June 2016 VA examinations, as well as the July 2016 private medical opinion, to be more probative than the November 2019 VA examination with regards to the impact of the Veteran’s hearing loss on activities of daily living and employability. Affording the Veteran the benefit of all reasonable doubt, the Board is satisfied the evidence of record described above shows sufficiently severe physical symptomatology, to include significant difficulties with prolonged sitting, standing, walking, hearing, and understanding speech with or without assistive devices, due to his service-connected disabilities to render him unable to maintain any substantially gainful occupation consistent with his educational and occupational background as a clinical social worker. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.