Citation Nr: 21075184 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 08-10 696 DATE: December 17, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 29, 2013 is granted. FINDINGS OF FACT 1. Prior to April 29, 2013, the Veteran is service-connected for only bilateral hearing loss and tinnitus and does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(b). 2. However, the evidence nonetheless is at least in relative equipoise as to whether the Veteran's hearing loss produced profound left ear hearing loss throughout the period on appeal that, when considered in the context of his limited education, work experience, and skill set, were inconsistent with obtaining or following a substantially gainful occupation during this time. 3. The VA opinions of record to the contrary are less complete and probative than December 2016 and January 2019 vocational expert opinions that both agree as to the extent of occupational impairment presented by his hearing loss and tinnitus because they do not consider or discuss the same breadth of factors as the vocational opinions of record (e.g., lack of transferable skills, nature and circumstances of his prior work experience, educational and vocational attainment, etc.). CONCLUSION OF LAW The criteria for TDIU prior to April 29, 2013 are met. 38 U.S.C. §§ 1155, 5107 (West 2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from July 1968 to July 1972. This appeal is before the Board of Veterans' Appeals (Board) from a November 2007 rating decision that originally granted service connection for hearing loss. The Veteran initiated a timely appeal of the initial rating assigned at the time and, during the pendency of that appeal, raised TDIU in an April 2009 brief. Therefore, this claim is part and parcel of an initial rating appeal stemming from an original May 26, 2006 service connection claim. The Board initially referred this matter for adjudication in April 2012, but the United States Court of Appeals for Veterans Claims (Court) remanded it in December 2012 to be considered on the merits. The Board then remanded this claim in April 2013 and denied it in December 2014. The Court vacated that denial and remanded again in May 2016, after which the Board remanded it in March 2017. In April 2019, the Board granted TDIU from April 29, 2013 and remanded TDIU prior to that date. In November 2020, the Board denied TDIU prior to April 29, 2013. In November 2021, the Court granted a Joint Motion for Remand (JMR) vacating that denial and remanding the issue to the Board once more. 1. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 29, 2013 The Veteran argues that TDIU is warranted based on his service-connected disabilities prior to April 29, 2013. Specifically, he argues that the degree of impairment presented by his audiological disabilities during this time was so profound that it interfered with his ability to do work consistent with his education, work history, experience, and skills without risking his own or others' safety. For the reasons that follow, the Board agrees. 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. During the period on appeal, the Veteran is service-connected for hearing loss (rated 10 percent from May 26, 2006) and tinnitus (rated 10 percent from September 29, 2011), with a combined rating of 10 percent from May 26, 2006 and 30 percent from September 29, 2011. Therefore, he does not meet the criteria for schedular TDIU laid out in 38 C.F.R. § 4.16(a). However, even in such cases, it remains "the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. at (b). In such circumstances, the case is to be forwarded to VA's Director of Compensation Service for an advisory opinion on whether "extra-schedular" TDIU is nonetheless warranted based on his service-connected disabilities, employment history, education and vocational attainment, and all other relevant factors. Id. The Veteran's military occupation was as an aircraft fuel serviceman. According to December 2016 and January 2019 vocational assessments of record, he worked post-service "for his father who was a contractor who sprayed insecticides for farms" (which involved "driving tractors and spraying cotton and other crops"), as a "Carpenter Helper" (performing roofing, clean-up, siding, and framing), selling insurance and liquor, as a self-employed sub-contractor "performing carpentry, roofing, and small renovation jobs," and as a sheet metal roofer (installing "metal roofing on commercial and industrial buildings" and residential properties). He has a high school education and no other training or expertise. At the outset, clinical findings describing his left ear hearing loss are largely in agreement as to its profundity throughout the period on appeal. Audiological testing from October 2007 onwards consistently shows either "0%" left ear speech discrimination scores or an inability to test speech discrimination on that side altogether as a result of hearing loss (which, it should be noted, is considered "exceptional" under 38 C.F.R. § 4.86). Notably, even a January 2006 record describes the left ear as "nerve deaf" and providers at that time indicated even hearing aids "would not help" that ear. Consequently, all that remains is to consider whether this profound left ear hearing loss that has been consistently documented throughout the period on appeal was also preclusive of meaningful employment during that time. To that end, the Board notes that the only expert opinions in the record that specifically discuss the occupational impact of his service-connected disabilities in a vocational context are December 2016 and January 2019 opinions from two separate vocational experts. Both found the Veteran's service-connected hearing impairment was substantial enough to render him unemployable well before April 29, 2013. The December 2016 opinion specifically considers his prior work history, education, and experience when finding "[t]he majority of [his] work history has required working in a loud or very loud work environment." Moreover, the expert goes so far as to not only note that "[c]onstruction work is always performed in an environment with background noise or competing sound sources," but also that, even in the non-construction jobs he has held (in sales), he would have to work "in a moderately noisy environment" or "an environment with background noise and competing sound sources." She also pointed out that "[i]nsurance sales requires meeting with customers in industrial settings." The Veteran's prior work in roofing and carpentry was also noted to involve high risk of injury (according to the Occupational Outlook Handbook) and "[t]he need for a Carpenter or Roofer to hear other workers adequately would be imperative to his or her safety as well as the safety of other workers on the team." Moreover, "[p]oor communication abilities would cause safety hazards in an already dangerous work environment." The Board notes that this finding is highly consistent with the Veteran's reports of record that his hearing loss posed a safety risk on and off the job (noting that, in at least on instance, he had walked in front of a car or dump truck because he couldn't hear it coming). Perhaps most notably, the December 2016 expert opinion found that, "even if the Veteran could hear adequately to work in a quiet environment, he does not have the transferable skills to perform this kind of work." Specifically, she notes that he "cannot type and he has no computer skills," and said that "he would not be able to work in a job that required communication with more than one person at a time" and "[h]e is unable to understand people talking in a store." He also said he couldn't read lips or "understand words very well." Based on these findings, the December 2016 opinion indicates his "service-connected disabilities would...prevent him from securing and following a substantially gainful occupation and that this has been the case since certainly [February 1, 2008], when [a VA provider] concluded [he] had severe to profound [sensorineural hearing loss]...with a very poor (0%) speech discrimination score." She went on to say that this could even have extended "as far back as [May 2006], when he was initially determined eligible for disability compensation" or "as far back as 2004 when he was 'talked to' by his employer because of his inability to effectively hear and interact with customers, and was given reduced hours thereafter." The expert even acknowledged potentially negative evidence, such as the fact that he worked in 2006 and 2007. However, she found that "from a vocational perspective, this work represents an unsuccessful attempt at return to work until such time as he could not work at all, starting in 2008." She also noted the presence of medical opinions indicating he "can engage in work activity despite the restrictions and/or limitations arising from his service-connected disabilities," but noted that medical professionals "have limited expertise in translating...whether or not this degree of limitation prevents one from working or if they can work despite the limitation." The January 2019 vocational expert opinion similarly found that, based on a history of severe hearing loss and associated functional impairment, he "has been unable to secure and follow substantially gainful employment since he last worked in 2008." In so finding, this expert noted his hearing loss caused "severe limitations interacting with coworkers, supervisors, and the general public, severe limitations in hearing his surroundings in the workforce, inability to work safely in his environment (unable to hear noises from hazards), and difficulty maintaining concentration and focus due to tinnitus." He noted that the Veteran had "significant difficulty hearing others on the job site" towards the end of his roofing career, and that "working on construction sites was a safety hazard due to his inability to hear other construction vehicles." Since then, the expert noted he "has continued to experience severe difficulties when communicating with others," particularly "when there is added background noise." He felt that, given such profound hearing impairment, "the Veteran would be precluded from work at all substantially gainful activity levels as a result of bilateral hearing loss, as hearing and communicating are essential functions of all employment." Thus, his limitations "would erode almost all of the competitive labor force," not to mention precluding work in "manufacturing positions due to the Veteran's inability to safely hear moving machinery and other coworkers" or "clerical positions due to difficulty hearing and communicating, as well as the lack of transferable skills to this area." He added that his severe hearing and communication limitations would also preclude "work in unskilled customer service positions such as a cashier." Even jobs "with limited hearing required," were felt to be outside his reach because such positions would still require checking in with supervisors throughout shifts and the Veteran would have severe difficulty doing so, particularly if by telephone. He also acknowledged an October 2018 VA medical opinion finding his audiological conditions "do not preclude the ability to gain and maintain employment," but noted that the examiner relied on some assumptions (e.g., that the Veteran "would be expected to communicate fairly well in quiet situations with good eye contact and close communication distance") that are inconsistent with reality (e.g., his continued difficulty "communicating face to face with his wife within his home and without background noise"). Notably, the January 2019 vocational expert references audiological records noting the same sort of profound left ear hearing loss with "0%" speech discrimination dating back to at least 2007. Considering (1) the consistency of the vocational expert opinions with each other, other clinical evidence of record, and the Veteran's lay reports of record; (2) the thoroughness and breadth of the analyses provided by these experts (e.g., considering not only the first-degree audiological impairment but also second- and third-degree practical implications like difficulty communicating overall, safety risks at work, the practical environmental requirements of work within his transferable skill set, etc.); (3) the experts' reconciliation of their opinion with potentially negative or contradictory evidence of record; and (4) the specialized expertise, education, and training of the authors to address the core question in this appeal, the Board finds these opinions highly probative, just as in the prior April 2019 Board decision granting schedular TDIU under 4.16(a). Crucially, the unfavorable May 2013 and October 2018 VA opinions of record are comparatively less thorough, and appear to consider only whether the Veteran's hearing loss or tinnitus preclude gainful employment in a vacuum, with no regard for additional factors laid out directly in the governing regulations. Accordingly, the Board finds the December 2016 and January 2019 vocational experts' opinions persuasive in this matter. Furthermore, given that the medical evidence shows the same audiological disability picture underlying both those opinions (i.e., profound left ear hearing loss with poor speech discrimination (0%) has consistently been documented since well before April 29, 2013, and potentially even before his original May 2006 claim seeking service connection for hearing loss), the Board finds the evidence is at least in relative equipoise as to whether he has had service-connected impairment that precluded him from obtaining or following substantially gainful employment throughout the period on appeal. Resolving all remaining doubt in the Veteran's favor, the Board finds that the appeal must be granted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.