Citation Nr: 21074826 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-35 914 DATE: December 16, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The claim for service connection for an eye condition, to include melanoma and retinal detachment is remanded. FINDING OF FACT The evidence shows that the Veteran's service-connected hearing loss is of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1954 to May 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal in part from a rating decision issued in July 2016 which denied service connection for an eye condition. The Veteran filed a timely Notice of Disagreement (NOD). Subsequently, as part of an increased rating claim for bilateral hearing loss, an October 2016 rating decision denied a TDIU. While the appeal for his eye condition was pending, the Veteran filed a new claim for both his eye condition and requested a TDIU. A May 2017 rating decision again denied a TDIU. 1. TDIU The Veteran seeks a TDIU. He contends that his hearing loss has rendered him unable to secure or follow a substantially gainful occupation. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16 (a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The Veteran is service-connected for the following disabilities: bilateral hearing loss (10 percent from May 26, 2011; 60 percent from May 11, 2016) and tinnitus (10 percent from May 26, 2011). The Veteran has a bachelor's degree in Speech and Telecommunications. In 1974 while serving in the Reserves, the Veteran started a janitorial and locksmith service, [REDACTED], in his town. The Veteran's schedule varied over the years, however, he tended to work nights, weekends, and holidays when businesses were closed. The Veteran never had employees and performed all the janitorial and locksmith work himself, though occasionally receiving help from family members. He was also responsible for performing all the administrative and financial tasks associated with the business. Work tasks included dusting furniture and other services, cleaning windows, moving furniture for cleaning, sweeping floors, stripping, washing, and waxing floors, shampooing carpets, cleaning and disinfecting bathrooms. Administrative tasks included promoting the business, scheduling customers, customer service, purchasing supplies, billing, and financial management. In August 2016, the Veteran reported being unable to complete his job tasks. See June 2021 Correspondence. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral hearing loss. The Veteran testified at his Board hearing that he has difficulty hearing instructions and misses words when talking to others. Both the January 2013 and June 2016 VA examinations indicated that the Veteran's hearing loss interferes with the ordinary conditions of daily life including the ability to work. Specifically, the Veteran reported decreased speech understanding in both quiet and noisy environments even with hearing aids. An August 2021 letter from the Veteran's physician Dr. Hempel indicated that the Veteran has significant difficulties with hearing making it impossible for him to drive, follow directions, and hear all the words that people are saying to him. Dr. Hempel indicated that this causes symptoms similar to dementia but due to hearing loss. Dr. Hempel opined that the Veteran could not obtain a job or compete in a competitive job market due to his hearing loss. Additionally, an occupational counselor, Ms. Frangione, wrote a long statement detailing the Veteran's employment history and suggesting that he would still be working but for his service connected hearing loss Given the presence of this significant hearing disability, it is clear that the Veteran would have difficulty in a work setting to communicate with others and operate safely from external hazards. Given the forgoing, the evidence is supportive of the Veteran's claim that his service-connected hearing loss precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. REASONS FOR REMAND Service connection for an eye condition, to include melanoma and retinal detachment is remanded. The Veteran seeks service connection for an eye condition to include melanoma and retinal detachment. In June 2016, he was afforded a VA examination where he was diagnosed with melanoma/retinal detachment, pseydophakia, and glaucoma. The examiner opined that the Veteran's condition was less likely than not (less than 50 percent probability) related to service because there was no evidence that working on a carrier was likely to cause melanoma of the retina. A March 2019 VA examiner opined that the Veteran's retinal detachment was less likely than not (less than 50 percent probability) related to service because the Veteran's retinal detachment was a consequence of his treatment for melanoma not related to the conditions of service. The Board finds that these medical opinions are inadequate because they do not consider the Veteran's lay statements regarding his reported exposure to UV light during service without eye protection, and the private medical opinions of evidence. Additionally, an article regarding retinal melanoma has not been considered by a VA examiner. Thus, remand is necessary to address deficiencies and provide further clarification regarding whether there is a nexus to service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his eye condition. The examiner is asked to provide a response to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's eye condition began in or was otherwise caused by the Veteran's active military service, including as a result his alleged exposure to UV light for extended period of times without eye protection therein? Why or why not? Provide a rationale to support the opinion(s). In providing a rationale, the examiner should address the article provided by the Veteran entitled Intraocular Melanoma Linked to Occupations and Chemical Exposures (See 12/13/2020 Third Party Correspondence). Additionally, the examiner should address the private medical opinions of both Dr. Spinak and Dr. Osborn. See 2/22/2017 Medical Treatment Record Non-Government Facility and 10/13/2020 Medical Treatment Record Non-Government Facility. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.