Citation Nr: 21007102 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-45 040 DATE: February 8, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities throughout the claim period. See VA Examinations dated September 2011, April 2015, November 2015, August 2016; July 2015 TDIU Application; February 2016 Private Medical Opinion; June 2016 Notice of Disagreement; October 2016 Veteran Statement. CONCLUSION OF LAW The criteria for a TDIU are met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the Air Force from June 1961 to June 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a February 2019 decision, the Board denied the Veteran’s claim for a TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the Board’s decision and remanded the case to the Board for proceedings consistent with its decision. In particular, the Court held that the Board’s February 2019 decision erred in the following respects: 1) The Board improperly outsourced its adjudicative role by accepting uncritically the conclusions of medical examiners as to whether the Veteran was able to secure employment; 2) The Board failed to explain why it afforded “substantial weight” to opinions of medical practitioners regarding the Veteran’s employability, a matter not within their area of expertise; 3) The Board failed to explain the discrepancy between the Veteran’s 50 percent rating for major depressive disorder and an August 2016 VA psychiatric examination the Board relied on in its decision, which notes symptoms consistent with a 10 percent evaluation; 4) The Board failed to explain the relevance to the TDIU inquiry of its reference to the August 2016 VA examination’s notes indicating that the Veteran had good family relationships and went bowling and to church. The Court also found that the Board’s decision did not sufficiently perform the analysis required by Ray v. Wilkie, 31 Vet. App. 58, 63 (2019). Finally, the Court directed the Board to consider the Veteran’s argument that a TDIU was warranted earlier than April 2015 and to consider whether the Veteran is entitled to a TDIU based on the collective impact of his service-connected disabilities. The Board has considered the Veteran’s claim in light of the Court’s instructions and guidance and finds that a TDIU is warranted throughout the claim period. Entitlement to a TDIU 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. Disabilities resulting from a common etiology are treated as a single disability for purposes of schedular eligibility. 38 C.F.R. § 4.16(a). Here, the Veteran has had ratings of 50 percent and 10 percent for bilateral hearing loss and tinnitus, respectively, since April 24, 2015. Because these disabilities result from a single etiology, the Board considers them as a single disability rated as 60 percent disabling. Therefore, the schedular threshold is met in this case from April 24, 2015. The remaining issue is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has consistently maintained that his service-connected bilateral hearing loss renders him unable to work, and the evidence supports his assertion. VA examinations in September 2011 and April 2015 both note significant functional impairment associated with the Veteran’s hearing loss, including difficulty communicating with others even with the use of hearing aids. On his July 2015 TDIU application, the Veteran stated that he became too disabled to work in April 2005. He stated that he was unable to hear commands or directions from his supervisors. A November 2015 VA examination found that the Veteran’s hearing loss impacted the ordinary conditions of daily life, including his ability to work. The Veteran reported to the examiner that he could not understand people talking. Although the examiner opined that the Veteran’s hearing loss “should not be a barrier to a wide range of employment settings,” she noted that the Veteran would have trouble working in noisy environments and in situations requiring communication without visual cues, such as over the telephone. Similarly, a February 2016 private medical opinion found that the Veteran was “expected to have difficulty communicating in difficult listening situations” such as “in the presence of background noise, communicating with a speaker greater than 10-15 feet away, and/or communicating with a speaker when more than one person is talking at a time.” Likewise, at an April 2016 VA mental health visit, the Veteran reported that he was unable to hear when there was background noise and therefore was unable to participate in many conversations. Finally, in his June 2016 notice of disagreement and an October 2016 statement, the Veteran again reported that he was unable to follow instructions from a supervisor because his hearing loss prevented him from understanding what they were saying. An October 2016 private medical opinion concluded that the Veteran was unable to seek or maintain employment due to his service-connected conditions, though the author of the opinion provided no rationale for this conclusion. The Veteran has a high school education and worked full time from 1966 until his retirement in 2005 as a machine operator, a position likely involving a great deal of background noise. See July 2015 TDIU Application; July 2015 Request for Employment Information. In light of this, the Board finds that the Veteran’s service-connected bilateral hearing loss prevents him from being able effectively work in positions for which his educational background and work history qualify him. Therefore, the Board finds that the Veteran’s service-connected disabilities have prevented him from securing or maintaining a substantially gainful occupation throughout the claim period. Accordingly, a TDIU is warranted throughout the claim period. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.