Citation Nr: 21000702 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-08 226 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities The Veteran has asserted that he is unemployable due to his service-connected bilateral hearing loss and tinnitus disabilities. See February 2016 VA Form 21-8940. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may 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 disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Throughout the appeal period, the Veteran’s bilateral hearing loss and tinnitus have been rated 80 and 10 percent disabling, respectively. Therefore, he has met the schedular criteria for TDIU. See 38 C.F.R. §§ 4.25, 4.26. As the Veteran satisfies the criteria for schedular consideration for a TDIU, the remaining consideration is whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. Merriam-Webster’s Collegiate Dictionary 1123 (2003). After review of the lay and medical evidence of record, the Board finds the preponderance of the evidence is against a finding that the Veteran’s service-connected hearing loss and tinnitus prevented him from securing or following gainful employment at any point during the appeal period. The Board has considered the Veteran’s educational and employment background. The evidence reflects that the Veteran completed three years of high school and has not obtained any additional educational or training. Nevertheless, the evidence also shows that the Veteran’s work history includes working as a foreman at a tree company from January 1962 until he stopped working in December 2000. The Veteran reported that he did not lose any time from work or leave his job because of his disability. See VA Form 21-8940 dated February 2016 and March 2016. Indeed, there is no indication or allegation of record that the Veteran’s hearing loss and tinnitus disabilities impacted his ability to perform his previous job; however, the Board acknowledges that the evidence shows his hearing impairment has significantly worsened since he stopped working in 2000, which is reflected by the incrementally higher ratings assigned for his hearing loss disability since service connection was established in 2012. See rating decisions dated October 2012, March 2014, and January 2016. While the Veteran has alleged that his tinnitus disability has rendered him unemployable and he has consistently endorsed having constant tinnitus in both ears, he has also reported that he is able to ignore it at times if he does not think about it. See e.g., May 2016 VA examination. Given this, the Board finds the medical evidence does not support a finding that tinnitus, alone, prevents him from obtaining or maintaining employment. Nevertheless, the Board will consider the combined effects of the Veteran’s tinnitus and hearing loss disabilities. The evidence clearly shows that the Veteran experiences a significant functional impairment as a result of his hearing loss disability. He has consistently reported having difficulty understanding during conversations. In January 2016, the Veteran reported that he was hearing well with his newer hearing aids but that he was still having difficulty understanding. See VA examinations dated January 2016 and May 2016. Both audiologists who conducted the January and May 2016 VA examinations indicated that the Veteran’s hearing loss would impact his ability to perform ordinary conditions of daily life, including his ability to work, but the May 2016 VA examiner further explained that the Veteran would most likely have difficulty working in an environment with a lot of loud noise. See Id. The Veteran provided a medical opinion from Dr. Kelly, a private audiologist, who opined that the Veteran’s hearing loss and tinnitus disabilities render him unemployable. In making this determination, Dr. Kelly stated that the Veteran would need to avoid working in any environment where there is any noise, as noise would exacerbate his hearing loss. She also noted that the limitations caused by his hearing loss would prevent verbal communication face-to-face, as well as by telephone, and she further noted that the Veteran’s hearing loss would pose a significant safety risk in any job setting involving transportation, driving, or being around machinery. In summary, Dr. Kelly stated that the Veteran’s hearing loss would significantly impact his employability in most job assignments with or without adaptation. See July 2016 statement from Dr. Kelly. The Board notes that, while Dr. Kelly began her statement with the opinion that the Veteran is unemployable as a result of his hearing loss and tinnitus disabilities, her concluding statement is more consistent with the limitations described in her statement. In this regard, the Board notes that, despite the limitations described in noisy environments or work settings that would require verbal communication, Dr. Kelly did not state or indicate that the Veteran would not be able to perform duties in a quiet setting, such as an office or library, or perform a job that required minimal to no verbal communication or supervision, such as a file clerk or a job that primarily involved written communication. Indeed, Dr. Kelly’s concluded her statement by noting that the Veteran’s hearing loss would significantly impact his employability in most job assignments, which does not establish that his hearing loss or tinnitus would likely prevent his functioning in all settings. In this context, the Board notes that the Veteran’s education and work history is limited, as he only completed three years of high school and worked with a tree company for the majority of his post-service career. However, there is no indication that he does not possess the basic visual, physical, and mental skills that are likely needed to work in an environment that requires minimal to no verbal communication or supervision, such as an office or filing clerk position. The Board acknowledges the Veteran does not have any work experience in an office or filing clerk setting, but the Board notes that his previous job as a foreman likely required some form of administrative and supervisory skills which would transfer to a job that required basic skills. Therefore, despite the significant functional impairment caused by his hearing loss disability, the Board finds that the preponderance of the evidence shows the Veteran remains capable of performing the visual, physical, and mental ability required for some form of gainful employment, including employment in a quiet setting that requires minimal to no verbal communication. Even when combined with the minimal functional limitation caused by his constant tinnitus, the Board notes that that a job in an office setting, such as an administrative or file clerk job, would be consistent with the Veteran’s remaining functional capacity, including with the use of hearing aids, as well as his education and work history. In making this determination, the Board notes that the significant functional impairment experienced by the Veteran due to his service-connected hearing loss and tinnitus disabilities is adequately reflected and contemplated in the individual disability ratings assigned for each disability throughout the appeal period. In this regard, the Board notes that the hearing loss disability is rated at 80 percent disabling, which is recognition that the impairment caused by the hearing loss disability makes it significantly difficult, but not impossible, to obtain and keep employment. Indeed, while the Veteran would likely have significant difficulty in employment settings, the evidence does not reflect that he is unable to obtain and retain some form of substantially gainful employment that is consistent with his educational and vocational experience. Accordingly, the preponderance of the evidence is against the Veteran’s claim and, thus, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.