Citation Nr: 21066333 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-54 830 DATE: October 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to September 14, 2016 is granted. FINDING OF FACT The Veteran's service-connected disability precluded him from obtaining and maintaining substantially gainful employment during the period prior to September 14, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 C.F.R. § 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. This matter was previously before the Board, in January 2021. At that time, the Board granted the Veteran's claim for service connection for post-traumatic stress disorder (PTSD) and remanded the claim for a TDIU in light of that decision. Following the remand, the RO implemented the grant of service connection for PTSD and granted a TDIU from September 14, 2016, the date of the Veteran's diagnosis for PTSD. VA received the Veteran's claim for TDIU on October 16, 2015. As the grant of the TDIU was not for the entire period on appeal, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a TDIU for the period prior to September 14, 2016 In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU 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 a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, prior to September 14, 2016, the Veteran was rated as 60 percent for bilateral hearing loss and 10 percent for tinnitus, and thus met the schedular requirement for a TDIU. The record reflects that the Veteran entered the police academy after discharge from active service and was thereafter employed in law enforcement until his retirement in April 2014. The Veteran's treating physician submitted an October 2015 letter indicating that the Veteran was unable to continue to work in law enforcement. The physician also submitted an April 2016 letter stating that the Veteran was "unable to work due to multiple combined service-connected disabilities." A January 2021 VA audiological examiner noted that, based on the Veteran's past hearing test results, he would be expected to struggle in verbal communication without a hearing aid, even in a quiet environment. The examiner also noted that the Veteran's tinnitus disrupted the Veteran's sleep. The February 2016 VA audiological examiner noted that the Veteran had difficulty understanding speech and that quiet environments would help. According to the examiner, no amount of hearing loss would render an individual unemployable as completely deaf individuals are employable. The examiner noted that the Veteran would likely require retraining but concluded that he could seek physical and sedentary employment in quiet environments. The Veteran reported to the March 2015 VA audiological examiner that he could not hear the radio at work or information over the loudspeakers and that he had to retire because he was misinterpreting important information in his role as an airport police officer. The Veteran also reported that his tinnitus made is difficult to hear over the phone or radio. The Veteran submitted a lay statement in October 2014 noting that his hearing loss affected "everything every day," and that he misunderstood people, leading to mistakes. The Veteran testified at the November 2020 Board hearing that he retired because he could not afford to make a mistake listening to aircraft, speaking on the radio and answering calls as an airport police officer. The Veteran testified that he had to be right next to a person to have a conversation and could not travel alone because he could not hear loudspeakers. The Veteran also testified that he had to sit in the front of training classes while employed at the airport and could still only barely pass the exams. Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of evidence weighs in favor of granting a TDIU. The Veteran's lay statements and the opinions of the VA examiners reflect that the Veteran's hearing loss and tinnitus disabilities impacted his ability to perform the requirements for employment. Specifically, the Veteran spent his entire career in law enforcement and testified that he retired because of his inability to understand important communication over the radio, loudspeakers and telephone. The VA examiners documented the Veteran's difficulty understanding verbal communication. Although the February 2016 examiner suggested that the Veteran could work in a quiet environment with retraining, the January 2021 examiner noted that the Veteran would have difficulty even in a quiet environment given the severity of his hearing loss. Based on the foregoing, the Board finds that the lay and medical evidence establish that the Veteran's service-connected disabilities precluded him from performing any type of gainful employment for the period prior to September 14, 2016. Accordingly, TDIU is granted from October 16, 2015. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.