Citation Nr: 21001258 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-23 260 DATE: January 7, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss from March 31, 2011 to November 4, 2019, is denied. Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss from November 4, 2019 is denied. Entitlement to a 20 percent evaluation, but no higher, for radiculopathy of the right lower extremity is granted. Entitlement to a 20 percent evaluation, but no higher, for radiculopathy of the left lower extremity is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral hearing loss for the period from March 31, 2011 to November 4, 2019, has been manifested by no worse than level I hearing loss for the right ear, and no greater than a level I hearing loss for the left ear. 2. The Veteran’s service-connected bilateral hearing loss for the period from November 4, 2019, has been manifested by no worse than level IV hearing loss for the right ear, and no greater than a level V hearing loss for the left ear. 3. Resolving reasonable doubt in favor of the Veteran, there is objective evidence to show the Veteran’s radiculopathy of the right lower extremity is manifested by symptoms consistent with moderate incomplete paralysis. 4. Resolving reasonable doubt in favor of the Veteran, there is objective evidence to show the Veteran’s radiculopathy of the left lower extremity is manifested by symptoms consistent with moderate incomplete paralysis. 5. Resolving reasonable doubt in favor of the Veteran, the evidence of the record reasonably demonstrates that the Veteran’s service-connected disability render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss from March 31, 2011 to November 4, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Codes 6100. 2. The criteria for an increased evaluation in excess of 10 percent for bilateral hearing loss from November 4, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Codes 6100. 3. The criteria for a 20 percent disability rating, but no higher, for radiculopathy of the right lower extremity, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520. 4. The criteria for a 20 percent disability rating, but no higher, for radiculopathy of the left lower extremity, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Army from April 1968 to March 1969, March 1969 to April 1971, and March 1997 to November 1997, including Army Reserve service from November 1999 to September 2008. This matter is on appeal from an April 2013 and November 2015 rating decision. The Veteran was afforded a March 2019 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in October 2019 for additional development. During the pendency of the appeal, a September 2020 rating decision increased the evaluation of the Veteran’s bilateral hearing loss to 10 percent effective November 4, 2019. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran’s bilateral hearing loss remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Board has recharacterized the issues on appeal as entitlement to a compensable evaluation for the Veteran’s bilateral hearing loss from March 31, 2011 to November 4, 2019; an increased evaluation in excess of 10 percent for the Veteran’s bilateral hearing loss from November 4, 2019; an increased evaluation in excess of 10 percent for the Veteran’s radiculopathy of the right lower extremity; an increased evaluation in excess of 10 percent for the Veteran’s radiculopathy of the left lower extremity; and entitlement to TDIU. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). Bilateral Hearing Loss The Veteran is currently service connected for bilateral hearing loss with a noncompensable evaluation from March 31, 2011 to November 4, 2019; and a 10 percent evaluation from November 4, 2019 under Diagnostic Code 6100. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. If impaired hearing is service-connected in only one ear, in order to determine the percent evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85 (f). However, compensation is payable for the combination of service-connected and non-service-connected hearing loss disabilities if hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of non-service-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The Veteran was afforded a March 2012 VA examination. The Veteran reported difficulty hearing speech in noise. The Veteran’s puretone threshold levels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 20 40 80 38.75 LEFT 15 15 40 75 36.25 Speech recognition scores based on the Maryland CNC Test was 96 percent for the right ear, and 98 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear resulted in a Roman numeral designation of I and the left ear resulted in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was afforded a July 2014 VA examination. The Veteran reported difficulty hearing and understanding speech in background noise. The Veteran’s puretone threshold levels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 30 55 80 45 LEFT 15 25 50 90 45 Speech recognition scores based on the Maryland CNC Test was 96 percent for the right ear, and 100 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear resulted in a Roman numeral designation of I and the left ear resulted in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran in a May 2016 form 9 statement asserted that he had several providers tell him that he had severe hearing loss and such reports were not considered by the Regional Office (RO). The Board notes that the Veteran has submitted audiological examinations dating from 2007 to 2008 in support of his appeal; however, it is unclear whether the speech discrimination scores were obtained using the Maryland CNC test, and the Veteran has not submitted any clarification to indicate otherwise. At the Veteran’s March 2019 hearing, the Veteran testified to having problems hearing people on the telephone; listening to television; and hearing or understanding his wife, especially in background noise. The Veteran’s representative noted difficulty communicating with the Veteran and stated that prior to the hearing they needed to call out to the Veteran several times in order to get his attention. The Veteran also testified that at a QTC hearing examination two years before the March 2019 hearing, the examiner told him that his hearing was so bad that she recommended he visit his civilian audiologist. The Board remanded this appeal in October 2019 for additional development. The Veteran was afforded a November 2019 VA examination. The Veteran reported that it was hard to hear high-frequency tones; experienced difficulty understanding speech especially in background noise; and would often need to ask people to repeat themselves. The Veteran’s puretone threshold levels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 30 70 75 51 LEFT 30 35 75 90 58 Speech recognition scores based on the Maryland CNC Test was 76 percent for the right ear, and 68 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear resulted in a Roman numeral designation of IV and the left ear resulted in a Roman numeral designation of V. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. After review of the evidence of record, the Board finds a compensable rating from March 31, 2011 to November 4, 2019 and an increased evaluation in excess of 10 percent from November 4, 2019 for bilateral hearing loss is not warranted. For the period from March 31, 2011 to November 4, 2019, the examinations of record to include the March 2012 and July 2014 VA examinations did not yield findings to support assignment of a rating in excess of 0 percent for bilateral hearing loss. The Board also notes aside from the March 2012 and July 2014 VA examination reports, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes for the period from March 31, 2011 to November 4, 2019. Although the Veteran testified in March 2019 that he had attended an examination two years prior where they told him he had severe hearing loss, review of the claims record does not show that records of this visit has been submitted by the Veteran to be associated with the record. As such the Veteran is not entitled to a compensable rating for bilateral hearing loss for the period from March 31, 2011 to November 4, 2019. 38 C.F.R. §§ 4.7, 4.21. After review of the record, the Board also finds that the preponderance of evidence is against a finding for an increased rating in excess of 10 percent for the Veteran’s bilateral hearing loss from November 4, 2019. Based on application of VA’s method for evaluating hearing loss and the November 2019 VA examination testing results, the Board finds that the evaluation does not provide a basis for awarding an initial rating in excess of 10 percent for bilateral hearing loss. Although the Veteran has indicated that his hearing is worse than the criteria associated with a noncompensable rating from March 31, 2011 to November 4, 2019 and a 10 percent evaluation from November 4, 2019, the rating criteria for hearing loss, as addressed above, evaluation of the severity of the Veteran’s hearing loss requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current noncompensable rating from March 31, 2011 to November 4, 2019 and 10 percent evaluation from November 4, 2019 is reflected by the rating evidence of record and there is no indication that the findings on the VA audiological examinations were inadequate. Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s bilateral hearing loss meets the criteria for a compensable rating for the period from March 31, 2011 to November 4, 2019, and a rating in excess of 10 percent from November 4, 2019. 38 C.F.R. § 4.85. As the preponderance of the evidence is against a compensable rating from March 31, 2011 to November 4, 2019, and an evaluation in excess of 10 percent for bilateral hearing loss from November 4, 2019, there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Radiculopathy of the right and left lower extremity The Veteran is currently service connected for radiculopathy of the right and left lower extremity both evaluated at 10 percent under Diagnostic Code 8520. Under DC 8520, paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a , Diagnostic Code 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Review of the medical treatment record shows in May 2011 the Veteran was seen for followup to nerve conduction results. Upon physical examination, the provider found the Veteran with no numbness or tingling; normal to light touch in the lower extremities; and able to demonstrate full strength, normal reflex and normal gait. The provider noted the Veteran was unable to perform straight leg raising testing due to back pain. The provider assessed the Veteran with lumbosacral radiculitis. In a separate May 2011 statement, the Veteran reported electrodiagnostic findings from January 2011 which indicated evidence of bilateral L5 and S1 lumbosacral radiculopathy. In an April 2013 VA examination for the Veteran’s back, the VA examiner found a positive straight leg raising test result for both lower extremities. The examiner found symptoms of bilateral moderate intermittent pain; paresthesias and/or dysesthesias; and numbness affecting the bilateral lower extremities. The examiner found nerve root involvement of the bilateral sciatic nerves and indicated it was at moderate severity. The Veteran was afforded a May 2018 VA examination. The Veteran reported that his symptoms had worsened. The Veteran described pain in his bilateral thighs to his ankles; “burning” pain in his legs; waking up in the morning with numbness in his feet; and symptoms that worsened when standing longer than 15 minutes. The examiner found the Veteran with mild symptoms of intermittent pain; paresthesias and/or dysesthesias; and numbness affecting the bilateral lower extremities. The Veteran demonstrated 4/5 strength with normal reflex, normal left foot feeling and decreased right foot sensation. The Veteran demonstrated an antalgic gait due to bilateral leg neuropathy. The examiner found nerve root involvement of the bilateral sciatic nerves and indicated it was at mild severity. At the March 2019 hearing, the Veteran testified that he had pain in his back radiating into his hips and down. The Veteran stated that he experienced “constant” flareup that interfered with his sleep with involuntary muscle twitching and a burning sensation. The Veteran stated that he did not want to climb stairs and limited his walking. The Veteran described fatigue in his legs, weakness in his ankles, and numbness and tingling in his feet. The Veteran stated that he has not fallen but has caught himself several times before it happened. The Veteran was afforded a November 2019 VA examination. The Veteran reported nerve issues that had progressively worsened over the years with symptoms of pain, numbness and tingling that felt “like bugs”. The examiner found symptoms of bilateral moderate constant pain; paresthesias and/or dysesthesias; and numbness affecting the bilateral lower extremities. The examiner found nerve root involvement of the bilateral sciatic nerves and indicated it was at moderate severity. The Veteran demonstrated 2/5 strength with no atrophy; normal sensation; normal reflex in the knees but decreased in the ankles; and a slow and antalgic gait due to radiculopathy and pain. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that 20 percent disability rating, but no higher, for radiculopathy of the right and left lower extremity is warranted. As noted above, under Diagnostic Code 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. The April 2013 VA exam found moderate severity in right and left sciatic nerve. Although the May 2018 VA examiner found mild severity of impairment of the bilateral sciatic nerve, in the most recent VA examination in November 2019, the examiner found moderate severity of impairment of the Veteran’s right and left sciatic nerve. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that 20 percent disability rating, but no higher, for radiculopathy of the right and left lower extremity is warranted. However, an evaluation in excess of 20 percent for the radiculopathy of the right lower extremity has not been demonstrated by the evidence of record at any point. While the Veteran had numbness and pain there was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. Additionally, the November 2019 VA examiner also specifically indicated that the Veteran only had moderate radiculopathy of the right and left-side sciatic nerve. As a result, the Board finds that a 20 percent rating, but no higher, is warranted as the Veteran has exhibited symptoms consistent with moderate incomplete paralysis in the right and left lower extremity. Total Disability Rating Based on Individual Unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 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, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). As addressed above, the Board is granted a 20 percent evaluation, but no higher, for radiculopathy of the right and left lower extremity. As such, the Veteran is currently service connected for a back disability evaluated at 20 percent; a cervical spine disability evaluated at 20 percent; radiculopathy of the right and left upper extremity evaluated at 20 percent each; radiculopathy of the right and left lower extremity evaluated at 20 percent each; tinnitus evaluated at 10 percent; bilateral hearing loss evaluated at 10 percent; and scars on the right side of the face at a noncompensable evaluation. The combined evaluation of the Veteran’s disability was 70 percent from February 2019 and 80 percent in November 2019. The Board notes that although the Veteran does not have a service-connected disability with at least a 40 percent evaluation by itself; as addressed above, in determining whether the schedular threshold is met, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor if applicable, are considered one disability. Disabilities resulting from common etiology or affecting a single body system are also considered one disability. As such, the Veteran’s radiculopathy of the upper or lower extremities can be considered as one disability each and be combined to 40 percent. Therefore, the Veteran meets the threshold schedular requirement for TDIU. 38 C.F.R. § 4.16(a). In a March 2012 VA examination for tinnitus and bilateral hearing loss, the Veteran reported that his tinnitus did not cause any functional impact. The Veteran stated that his bilateral hearing loss caused functional impact where he found difficulty hearing speech in noise. In an April 2013 VA examination for the neck and back, the examiner found the Veteran’s cervical disability resulted in functional impact where neck pain and stiffness would result in difficulty with prolonged bending or heavy lifting. For the Veteran’s back disability where radiculopathy of the lower extremities was noted, the examiner found that back pain and stiffness resulted in limited range of motion and difficulty with heavy lifting, bending, prolonged sitting, walking or climbing stairs. In a July 2014 VA examination for tinnitus and hearing loss, the Veteran reported that his tinnitus was loud and distracting, and he had difficulty hearing or understanding speech in background noise. In a May 2018 VA examination for radiculopathy of the lower extremities, the VA examiner found that foot numbness made the Veteran a fall risk with difficulty lifting and carrying 30 pounds beyond 30 feet, and remarked the Veteran was to avoid stairs and ladders. At the Veteran’s March 2019 hearing, the Veteran testified that after his separation from active duty service, he worked for defense contractors flying intelligence cameras in airplanes overseas in Afghanistan. The Veteran stated that he left this job because his neck and back symptoms had progressed to the point where after sitting for five to five and a half hours “I couldn’t hardly get out of the seat without help…my neck started getting so stiff that I really couldn’t move around and look for other traffic and things like that.” The Veteran also stated that during this time his hearing was progressively getting worse where even with hearing aids and noise cancellation headsets he would still have issues using and listening to the radio system. The Veteran stated that his other job duties as a pilot instructed was also impacted because he would have difficulty communicating with new pilots. The Veteran stated that a combination of symptoms relating to his neck, back and hearing loss contributed to him leaving his job; noting that he would “probably done it for another three or four years at least …that’s been four or five years ago.” The Veteran testified that he currently has little no movement in his neck. The Veteran stated that he has difficulty listening to people on the phone, hearing the television and understanding his wife. The Veteran stated pain in his back radiating into his legs with flareups occurring constantly and interfering with sleep; the representative noted his observation of the Veteran “visually squirming [in his] chair” during the hearing. The Veteran stated that he avoids climbing stairs or walking due to fatigue, weakness and numbness. The Veteran stated that he has to be careful going around the house and is less active due to decreased mobility. In a November 2019 application for TDIU, the Veteran indicated that his disabilities of the cervical spine, lumbar spine, radiculopathy, and hearing loss contributed to his claim for TDIU. The Veteran reported a work history as a pilot in the Army from 1968 to 2008 and as a private pilot from 2008 to 2011. The Veteran indicated that in 2011 he was unable to renew his pilot license because his disabilities prevented him from passing his physical; as such the Veteran indicated that he stopped employment by April 2012 and had not worked or applied for employment since. In a November 2019 VA examination for tinnitus and hearing loss, the examiner noted the Veteran was retired. The Veteran reported his tinnitus was annoying and interfered with concentration and he found it hard to hear high-frequency tones and difficult to understand speech especially in background noise. In the November 2019 VA examination for radiculopathy of the lower extremities, the Veteran reported that he retired in 2011 from a pilot position because “I just couldn’t do it anymore”; the Veteran stated that he was unable to stay strapped in the pilot seat for extended periods due to leg pain and found it was not safe to get in and out. The examiner observed the Veteran during the examination that upon sitting there was “obvious guarding and grimacing of the lower extremities present”; the examiner found that sitting would aggravate the Veteran’s condition. After review of the evidence and resolving reasonable doubt, the Board finds that that TDIU is warranted for the Veteran’s service-connected disabilities. In addition to meeting the schedular criteria for TDIU, the record shows evidence that the Veteran’s symptoms of his service-connected disability interfered with his ability to obtain and maintain gainful employment. The evidence of record shows the Veteran’s symptoms of his service-connected disability include difficulty hearing speech in background noise; symptoms of pain and stiffness in his back and neck with numbness and weakness in his legs interfering with prolonged sitting, lifting and carrying and using stairs. The Veteran has not worked since 2011 or 2012. The Board notes that the Veteran’s previous work history as a pilot were positions that would involve activities that evidence currently shows the Veteran is either unable to or will have difficulty performing these duties. The Veteran has stated or testified that his service-connected disabilities are the primary reason why he was unable to pass his physical to renew his license and continue working. The Veteran stated that his disabilities prevented him from prolonged sitting in the pilot’s seat and unable to get out after flights; turning his head to check for traffic and other pilot duties; and understanding speech through his headset from the radio and from other new pilots during instruction. The Veteran indicated that he would still had been able to work a few more years if not for his disabilities. Although the VA examiners opinion did not specifically state the Veteran was unemployable, they found that these symptoms of his service-connected disabilities did impact any occupational work involving such activities; either limiting or opining the Veteran would be unable to work or perform job duties that required these motions or activities. Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, considering the record of the Veteran’s symptoms and impairments from his service-connected disabilities to include findings from VA examinations and testimony, the Board finds that that entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.