Citation Nr: 21006128 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-43 179 DATE: February 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective October 21, 2017. FINDING OF FACT Since October 21, 2017, the Veteran’s service-connected disabilities have precluded obtaining and maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met since October 21, 2017. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from September 1950 to May 1952. In January 2021, the Veteran testified at a Board Virtual Hearing before the undersigned Veterans Law Judge. 1. Entitlement to a TDIU Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). On October 21, 2017, VA received a VA Form 21-8940, initiating the claim for TDIU. The Veteran generally contends that his service-connected disabilities have precluded obtaining and maintaining a substantially gainful occupation. See October 2017 VA Form 21-8940; October 2017 Buddy Statements by CF (the Veteran’s spouse); January 2018 Buddy Statement by CF (the Veteran’s spouse); February 2018 Correspondence; March 2018 Notice of Disagreement (NOD); February 2019 VA Form 646; October 2019 Buddy Statement by CF (the Veteran’s spouse); October 2019 NOD. During the January 2021 Board hearing, the Veteran testified that he was seeking a TDIU effective October 21, 2017, the date VA received the claim. Notably, although the Board will discuss evidence before October 21, 2017, this evidence will help establish longitudinal consistency regarding functional impairment during the appeal period. The Veteran is currently service connected for: (1) bilateral hearing loss (20 percent from September 15, 2015; 50 percent from May 30, 2017; 60 percent from October 21, 2017; and 80 percent since January 14, 2020; and (2) bilateral tinnitus (10 percent since September 15, 2015). See January 2020 Codesheet. The current, combined evaluation for compensation is: 30 percent from September 15, 2015; 60 percent from May 30, 2017; and 80 percent since January 14, 2020. Id. As such, the Veteran has met the criteria for schedular TDIU consideration since October 21, 2017 (based on a single service-connected disability [bilateral hearing loss] ratable at 60 percent or more). 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a November 2015 Buddy Statement, CF (the Veteran’s spouse) contended, in pertinent part, that: the Veteran has great difficulty hearing, such that he tries to read lips, took a sign language course, cannot hear door bells or car alarms, and requires repetition during conversations; most of the time, the Veteran cannot even understand conversations with his hearing aid; CF fell in the house once and the Veteran could not hear her screaming for help; the Veteran must turn the television volume up so high that CF has to leave the room; and the Veteran’s quality of life is reduced due to the hearing problems. During the March 2016 VA audiological examination, the Veteran reported that he could not hear at all without hearing aids and could not communicate. In a May 2017 Buddy Statement, CF (the Veteran’s spouse) contended, in pertinent part, that: the Veteran’s hearing loss has worsened; the Veteran must turn the television to maximum volume and does not understand what CF or others say; the Veteran cannot work because he cannot understand what people say and he tries to read lips but it does not always work; the Veteran’s hearing aids help very little; and the Veteran can no longer function normally or independently. During the June 2017 VA audiological examination, the Veteran reported that he can very seldomly hear his wife speaking, cannot hear the television, and especially cannot hear when there is background noise. In the October 2017 VA Form 21-8940, the Veteran reported that he last worked full time in November 1997 in law enforcement and that he had no employment history in the prior five years. The Veteran did not complete the education section. He contended that his service-connected disabilities affected employability. In October 2017 Buddy Statements, CF (the Veteran’s spouse) continued describing the Veteran’s difficulty with everyday activities because of his hearing loss and tinnitus, including extreme difficulty hearing and understanding verbal communication and even almost getting into a car accident for failure to hear a car horn of another driver. During the November 2017 VA audiological examination, the Veteran reported that he must have speech repeated to him during conversations, if he can even hear the other person at all, and that it is worse around background noise. In a January 2018 Buddy Statement, CF (the Veteran’s spouse) continued describing the Veteran’s extreme difficulty understanding speech, which impairs his ability to function independently. In a February 2018 Correspondence and March 2018 NOD, the Veteran wrote that he is unable to work because he is unable to communicate and hear/follow instructions due to his hearing difficulty. During the August 2018 VA audiological examination, the Veteran reported that he must have speech repeated to him during conversations and that it is worse around background noise. In the September 2018 VA Form 9, the Veteran contended that he: had difficulty communicating and understanding even with hearing aids; cannot work and would not be able to understand what people are saying; and was not a candidate for a surgery to improve hearing, so the functional impact is permanent. In the February 2019 VA Form 646, the Veteran contended that the severity of the Veteran’s hearing loss is not conducive to a work environment and highlighted that: he cannot hear noises while driving a car, he cannot hear the television, he cannot hear others when talking on a phone, his profound hearing loss impacts every aspect of his life, and the Veteran’s spouse must conduct all business for the household because of the Veteran’s communication and understanding difficulty. In an October 2019 Buddy Statement, CF (the Veteran’s spouse) continued describing the Veteran’s extreme difficulty understanding speech, which impairs his ability to function independently. In an October 2019 NOD, the Veteran contended that he cannot function on his own and that there is no way he could work with the severity of his hearing loss. During the January 2020 VA audiological examination, the Veteran reported that he cannot understand what others are saying. Based on the evidence above, the Board finds that, since October 21, 2017, the Veteran’s service-connected disabilities have precluded obtaining and maintaining a substantially gainful occupation. Specifically, the evidence above demonstrates a longitudinal pattern of such severe hearing loss that the Veteran would more than likely be prevented from effectively and safely participating in a substantially gainful occupation (for example, the Veteran’s inability to hear screams and alarms during emergencies, even with hearing aids, would make most work environments physically and mentally unsafe for himself and others). Thus, the Board grants schedular TDIU effective October 21, 2017, the date VA received the claim. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.