Citation Nr: 21072108 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-44 017A DATE: December 2, 2021 ORDER Entitlement to an initial compensable rating for left-ear hearing loss for the period prior to July 15, 2010, is denied. Entitlement to a rating of 10 percent, but not more, for bilateral hearing loss (previously left ear hearing loss) for the period between July 15, 2010 and July 15, 2019, is granted. Entitlement to an increased rating higher than 30 percent for bilateral hearing loss (previously left ear hearing loss) for the period from July 15, 2019, is denied. Entitlement to an extraschedular rating for bilateral hearing loss, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 19, 2014, is granted. FINDINGS OF FACT 1. For the period prior to July 15, 2010, the Veteran's hearing acuity was not shown to have been worse than Level I in his nonservice-connected right ear and Level II in his left ear; no exceptional patterns of hearing loss were noted; no exceptional or unusual disability picture were noted. 2. For the period between July 15, 2010 and July 15, 2019, the Veteran's hearing acuity was shown to have been at worse Level III in his right ear and Level VI in his left ear based on noted exceptional patterns of hearing loss; no exceptional or unusual disability picture was noted. 3. For the period from July 15, 2019, the Veteran's hearing acuity was shown to have been at worse Level V in his right ear and Level VIII in his left ear based on noted exceptional patterns of hearing loss; no exceptional or unusual disability picture was noted. 4. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability manifested with functional impairment not contemplated by the schedular rating criteria. 5. The Veteran meets the schedular requirements for TDIU From May 19, 2014, based on several disabilities that stem from the same accident being combined into a single rating higher than 40 percent and an overall rating of at least 70 percent. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left ear hearing loss for the period before July 15, 2010, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, DC 6100. 2. The criteria for entitlement to a rating higher than 10 percent for bilateral hearing loss for the period between July 15, 2010 and July 15, 2019, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, DC 6100. 3. The criteria for entitlement to a rating higher than 30 percent for bilateral hearing loss from for the period from July 15, 2019, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, DC 6100. 4. The criteria for an extra-schedular rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.85, 4.86, DC 6100. 5. The criteria for the grant of TDIU from May 19, 2014, have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400, 4.16(a)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by a VA Regional Office (RO). This case was previously before the Board in May 2014, December 2016 when the Board denied a schedular rating higher than 10 percent for bilateral hearing loss and remanded entitlement to an extraschedular rating for bilateral hearing loss and TDIU, and most recently in February 2018 when the claim for entitlement to an extra-schedular rating for bilateral hearing loss from May 9, 2014 was remanded only for referral of the question of extraschedular rating for bilateral hearing loss to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service for adjudication; the claim of TDIU was remanded as inextricably intertwined. The RO submitted the question of extraschedular entitlement to the Director of Compensation and Pension Service in September 2019, a response was received in March 2020, and a Supplemental Statement of the Case (SSOC) was issued that same month. The Board notes that, to the full extent possible, VA complied with all prior remand instructions, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for appellate review. During the pendency of this appeal, an August 2019 rating decision increased the disability rating for bilateral hearing loss to 30 percent, effective July 15, 2019, based on evidence gathered for the extra-schedular claim. As the RO did not assign the maximum rating possible for the Veteran's bilateral hearing loss or assign this rating back to the effective date of the grant of service connection, the appeal for higher disability evaluations based on extra-schedular consideration for each stagged rating period noted above remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Rating Disability ratings are determined by application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria 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 increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing loss is rated under 38 C.F.R. § 4.85, DC 6100, which provides numeric designations that are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, based on pure tone thresholds and speech discrimination. There is no room for subjective interpretation. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Table VI, a Roman numeral designation (I through XI) for hearing impairment is found based on a combination of the percent of speech discrimination scores and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VIA, which assigns a Roman numeral designation solely on the pure tone threshold average, will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). Table VIA may also be used when there is an exceptional pattern of hearing impairment. Such a pattern occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. The Table which yields the better result for the Veteran is to be selected. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hz, divided by four. 38 C.F.R. § 4.85(d). The Roman numeral designations determined using Table VI or Table VIA are combined using Table VII to find the percentage evaluation to be assigned for the hearing impairment. 1. Entitlement to an initial rating for left-ear hearing loss for the period prior to July 15, 2010. In his July 2009 statement, the Veteran asserts that his service-connected left ear hearing disability is worse than reflected by the noncompensable rating assigned for the period before July 15, 2010. Hearing loss ranges from zero to 100 percent. This is based on organic impairment of hearing acuity measured by combining controlled speech discrimination tests results together with the average hearing-threshold level measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hz. The eleven auditory acuity levels range from level I for essentially normal acuity, through level XI for profound deafness to evaluate the degree of disability from service-connected hearing loss. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. The rating is determined in Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column, the numeric designation for the ear having the better hearing acuity (as determined by Table VI), and the horizontal row, the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). The claims file does not include any relevant post service treatment records for the period before July 15, 2010. The claims file includes an August 2009 VA Audio Examination. Although service connection was only granted for left ear hearing loss, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 35 45 60 65 LEFT 20 35 50 80 95 The average pure tone threshold was 51.25 decibels in the right ear and 65 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent bilaterally. Utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a hearing level of I in the right ear and II in the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a noncompensable rating. The Board notes that in cases where impaired hearing is service connected in only one ear, as is the case here, the non-service-connected ear is assigned a I, subject to the provisions of § 3.383 of this chapter. § 4.85(f). No exceptional patterns of hearing impairment were noted. The Board acknowledges the Veteran's assertions in his November 2010 VA Form 9 Formal Appeal that his hearing was worse than rated, that he wears hearing aids in both ears, and that he should be entitled to a compensable disability rating. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, and the Board finds that the Veteran is credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That noted, the Board finds the assigned noncompensable rating fully contemplated the functional effects asserted by the Veteran, as the subjective complaints of the Veteran are consistent with his testing findings and the hearing loss those findings reflect. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on the evidence noted above, the Board finds that an initial compensable rating for the period before July 15, 2010, is not warranted. There are no other relevant medical records for this period. No exceptional patterns of hearing impairment were noted. The Board finds the results of the August 2009 VA audiological examination adequately represents the severity of the Veteran's hearing loss for the period prior to July 15, 2010. In reaching the above conclusions, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). The appeal to this extent is denied. 2. Entitlement to an increased rating of 10 percent, but no more, for bilateral hearing loss for the period between July 15, 2010 and July 15, 2019. As noted above, this matter was before the Board in May 2014. At that time, the Board reopened the claim for service connection for right ear hearing loss and granted service connection. The Board did not identify a specific date for the grant of service connection but based the grant on a July 15, 2010 private ear conditions examination that included a positive etiology opinion. The claim for an increased rating for bilateral hearing loss was remanded for a new examination; the claim for TDIU was remanded as inextricably intertwined with the outcome of the increased rating claim for hearing loss. Post service treatment records for this period include a February 2013 VA audiology record wherein the Veteran reported having lost his hearing aids. A March 2013 VA audiology record noted the Veteran was afforded a comprehensive audiometry evaluation that showed asymmetric hearing loss, normal in the right ear and mild to profound mixed hearing loss in the left ear between 1000-3000 Hz. A June 2016 VA audiology record that noted an examination showing right ear results that indicated hearing within normal limits 250-500Hz sloping to a moderate to severe sensorineural hearing loss 750-8000Hz (air and bone conduction). Right Speech recognition score was 88 percent. Normal Type A Tympanogram was noted. Left ear results indicated a mild to profound mixed hearing loss 250-8000Hz (air and bone conduction). Left Speech recognition score was 76 percent. An abnormal Type Ad Tympanogram was noted. A separate June 2016 VA audiology record noted the Veteran reported increased hearing trouble and he had recently lost his right hearing aid. A July 2018 VA audiology record noted the Veteran requested an examination to determine the current nature of his bilateral hearing loss. The Veteran reported difficulty hearing, especially when watching TV. No specific audiometry results were noted. An August 2018 VA otolaryngology record noted a complaint of hearing loss for the past 30 years; no new hearing audiometry noted. The Board reviewed a July 15, 2010, private ear disease examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 55 75 80 LEFT 65 75 75 100 110 The average pure tone threshold was 65 decibels in the right ear and 90 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 76 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a hearing level of III in the right ear and V in the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a noncompensable rating. § 4.85(f). An exceptional pattern of hearing impairment was noted as all the left ear pure tone results were above 55 decibels allowing the use of Table VI or Table Via whichever would result in the higher numeral. § 4.86(a). Utilizing Table VI, the results correspond to a hearing level of III in the right ear and VI in the left ear. The Board notes this results in a 10 percent rating for hearing loss. The claims file also includes an October 2012 VA hearing loss and tinnitus examination wherein pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 1 1 1 1 1 LEFT 1 1 1 1 1 The average pure tone threshold was 1 decibel, bilaterally. Speech recognition was noted too unreliable to score in both ears. The examiner indicated that the Veteran was instructed how to respond several times, but responses remained inconsistent, and the results were considered invalid. The claims file includes a July 2014 VA Audio Examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 45 55 70 80 LEFT 30 45 80 90 100 The average pure tone threshold was 59 decibels in the right ear and 79 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a hearing level of II in the right ear and V in the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a 10 percent rating. No exceptional patterns of hearing impairment were noted. The claims file does not include other audiometry results for this period on appeal. Again, the Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, and the Board finds that the Veteran is credible. Washington, supra. 368. That noted, the Board finds that the assigned 10 percent rating fully contemplates the functional effects asserted by the Veteran, as the subjective complaints of the Veteran are consistent with his testing findings and the hearing loss those findings reflect. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board finds the results of the July 2010 private audiological examination and July 2014 VA examination best represent the severity of the Veteran's hearing loss for the period between July 15, 2010 and July 15, 2019. In reaching the above conclusion, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107(b). The appeal to this extent is granted. 3. Entitlement to a rating higher than 30 percent rating for bilateral hearing loss for the period from July 15, 2019. The claims file also includes a July 2019 VA Audio Examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 55 65 70 75 LEFT 45 55 85 95 105 The average pure tone threshold was 66 decibels in the right ear and 85 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 80 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a hearing level of III in the right ear and V in the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, results in a 10 percent rating. § 4.85(f). However, the Board notes that an exceptional pattern of hearing impairment was indicated bilaterally as all the pure tone threshold results were above 55 decibels allowing the use of Table VI or Table Via whichever would result in the higher numeral. § 4.86(a). Utilizing Table VI, the results correspond to a hearing level of V in the right ear and VIII in the left ear. The Board notes this results in a 30 percent rating for hearing loss. There are no other audiometry results for the period from July 15, 2019. Again, the Board acknowledges the Veteran's competent assertions that his hearing was worse than rated for this rating period. That noted, the Board finds that the assigned now assigned 30 percent rating fully contemplates the functional effects reported by the Veteran, as the subjective complaints of the Veteran are consistent with his testing findings and the hearing loss those findings reflect. See Doucette, supra. The Board finds the results of the July 2019 VA audiological examination represents the severity of the Veteran's hearing loss for the period from July 15, 2019. In reaching the above conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). The appeal to this extent is denied. 4. Entitlement to an extraschedular rating for bilateral hearing loss. The December 2016 Board decision noted the record raised the issue of entitlement to an extra-schedular rating for service-connected bilateral hearing loss. The Board remanded this issue to allow the RO to forward the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to address whether the assignment of an extra-schedular rating was warranted. The Board observed in the subsequent February 2018 decision that the RO, without referral to the VA Under Secretary for Benefits or the VA Director of Compensation and Pension Service for adjudication under 38C.F.R. § 3.321(b)(1), issued a September 2017 SSOC purporting to deny extraschedular rating for bilateral hearing loss and returned the matter to the Board for further appellate consideration. The February 2018 Board Decision remanded the matter again for referral. When there is an exceptional disability picture, as the Veteran asserts in this matter, such that the rating criteria do not reasonably describe a claimant's symptoms and disability level, the RO must refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321 (b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to adjudicate the merits of the extraschedular aspect of the claims. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Board remanded the Veteran's claim for extraschedular rating consideration for bilateral hearing disability in its December 2016 and February 2018 remand decisions. VA submitted a background memorandum and request for a determination in September 2019. The Director, Compensation Service, provided a memorandum opinion dated March 9, 2020 regarding the possibility of extraschedular consideration of the Veteran's bilateral hearing disability. As noted above, the Veteran's service-connected bilateral hearing disability is rated 30 percent under DC 6100. Here, the Director opined that, as of the date of the opinion, March 9, 2020, that the medical evidence failed to show frequent hospitalization or marked interference with employment. The Director's rationale acknowledged the multiple staged ratings, but also noted that no unusual or exception disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. In Thun, the United States Court of Appeals for Veterans Claims (Court) articulated a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. The first requirement is that the evidence must present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. The Veteran reports difficulty hearing. The Board notes the rating schedule accounts for his reported symptomatology. In Thun's second directive, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the evidence must show that the claimant's exceptional disability picture exhibits other exceptional or unusual factors such as marked interference with employment or frequent periods of hospitalization. In this case, there is no indication of exceptional or unusual factors demonstrating an exceptional disability picture. While the Veteran reports difficulties hearing, there is no indication of time lost from work, an inability to perform occupational tasks, or the requirement for frequent periods of hospitalization or other such significant impacts on occupational functioning. Finally, the third Thun requirement is that when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture, and the existing disability picture included related factors such as marked interference with employment or frequent periods of hospitalization, a determination must be made as to whether the claimant's disability picture requires the assignment of an extraschedular rating. In this case, the rating schedule is adequate to evaluate the Veteran's hearing loss. The evidentiary record fails to demonstrate any exceptional or unusual disability picture for bilateral hearing loss that renders application of the regular rating criteria impractical. The primary symptoms, difficulty hearing is either explicitly listed or contemplated by the regular rating criteria under the applicable DC 6100 for the hearing loss contained under 38 C.F.R. § 4.85. Consideration of such factors as impact upon employment are relegated to the second Thun element and rendered irrelevant unless an exceptional or unusual disability picture is demonstrated under the first Thun element, which is not shown. See Yancy v. McDonald, 27 Vet. App. 484 (2016). The Board acknowledges the Director's opinion, but it is not bound by any determination of the Director. Anderson v. Shinseki, 22 Vet. App. 423 (2009). As described above, both (1) the specific symptoms and their severity that have been attributed to the service-connected disability, and (2) the specific rating criteria involved in explaining why the Board found that the Veteran's symptoms and their severity are contemplated by the rating criteria. Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009) (citing 38 U.S.C. § 7104(d)(1). Therefore, having considered the medical and lay evidence of record, the Board finds an increased extraschedular rating is not warranted for the Veteran's bilateral hearing loss disability at any time during the appeal. As noted earlier, the Board denied increased ratings for each stage as noted above for the bilateral hearing loss based on the medical and lay evidence in the Veteran's claims file. Given the consideration of all the evidence, then, the Board finds that the levels and severity of his bilateral hearing loss symptomatology have been adequately compensated by the schedular rating criteria in DC 6100. In this case, application of the schedular rating criteria to the Veteran's bilateral hearing loss disability is not impractical because both the applicable DC and other regulatory provisions explicitly contemplate the Veteran's symptoms and disability level, including any special considerations for evaluating factors of disability and functional impairment when evaluating the Veteran's hearing. See 38 C.F.R. § 4.85, DC 6100. In other words, the rating criteria reasonably describe the Veteran's disability picture. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board finds that the preponderance of the evidence weighs against the assignment of an extraschedular rating for the Veteran's bilateral hearing loss pursuant to 38 C.F.R. § 3.321(b)(1) throughout the entire period on appeal. Gilbert v. Derwinski, 2 Vet. App. 49, 53 (1990). The appeal to this extent is denied. 5. Entitlement to TDIU. In his July 2009 statement, the Veteran contends that he is entitled to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU is part and parcel of an increased rating claim when such is raised by the record. This decision will consider TDIU for the entire period on appeal. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The criteria require that where there are two or more disabilities, as is the case here, at least one disability is rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA regulations consider multiple disabilities can be combined and rated as one disability for TDIU purposes when they result from common etiology or a single accident. 38 C.F.R. § 4.16(a)(2), (3). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The claims file includes multiple VA examinations and medical opinions regarding the service-connected disabilities. The Board finds that the medical examiners have separately opined that the Veteran's major depressive disorder, residuals of left clavicle fracture with degenerative osteoarthritis, tinnitus, ulnar nerve condition with residual dysesthesia (associated with cervical degenerative disease), benign positional vertigo, anosmia, migraine headaches, and traumatic brain injury have all been found to be more likely than not related to the same 1973 motor vehicle accident. The Veteran is also service connected for bilateral hearing loss which has not been specifically noted to be the result of the 1973 accident. Service connection is in effect for the following disabilities: tinnitus, rated at 10 percent from January 2019; residuals of left clavicle fracture with degenerative osteoarthritis, rated 20 percent from July 2009; cervical degenerative disc disease, rated 10 percent from July 8, 2010; and ulnar nerve with residual dysesthesia (associated with cervical degenerative disc disease), rated 10 percent from July 8, 2010. As these disabilities are the result of the same accident, they can be combined for the purposes of TDIU to a rating of 42 percent, rounded down to 40 percent from July 8, 2010. 38 C.F.R. § 4.25. The Board finds the Veteran has had a combined rating of 70 percent, with at least one disability rated 40 percent or more from May 9, 2014. Thus, the threshold requirements are met, and consideration of TDIU under 38 C.F.R. § 4.16(a) is warranted, from May 9, 2014. In the case at hand, the Board notes that the Veteran reported in his August 2009 TDIU application that he last worked, as a Director of Engineering for a property manager, in November 2008. In addition, the Veteran noted his ability to work was limited by his service-connected left arm, shoulder, and hearing loss disabilities. The Board thus finds that he has not been substantially gainfully employed during the entire pendency of this appeal. A June 2017 VA ear conditions examination noted the Veteran's vertigo has caused him to miss one week of work in the past 12 months. A July 2014 VA hearing loss examination noted the functional impact of not being able to make out what people are saying. A September 2012 VA shoulder and arms condition examination noted the Veteran is a heating and cooling technician; he is unable to install air conditioners or furnaces because of the weakness and loss of function in the left shoulder. The Board finds that in the aggregate, the evidence is at least in equipoise to show that the cumulative effect of the Veteran's service-connected disabilities has prevented him from securing and following a substantially gainful occupation since November 2008. Accordingly, based on the totality of the evidence in this case, the Board will resolve reasonable doubt in the Veteran's favor and find that his service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and work experience from May 19, 2014. See 38 U.S.C. § 5107(b). TDIU is thus granted from May 19, 2014, the date the Veteran met the schedular criteria for TDIU. Jennifer Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.