Citation Nr: 21007412 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-12 071 DATE: February 9, 2021 ORDER Entitlement to an initial compensable evaluation from July 30, 2010 to December 22, 2015 for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent from December 23, 2015 to July 28, 2019 for bilateral hearing loss is denied. Entitlement to an evaluation in excess 20 percent from July 29, 2019, for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability due service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. From July 30, 2010 to December 22, 2015, the Veteran’s hearing has been manifested by a hearing acuity level of no worse than II in both ears. 2. From December 23, 2015 to July 28, 2019, the Veteran’s hearing has been manifested by a hearing acuity of no worse than V in the right ear and no worse than level IV in the left ear. 3. From July 29, 2019, the Veteran’s hearing has been manifested by a hearing acuity of no worse than V in both ears. 4. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable evaluation from July 30, 2010 to December 22, 2015 for bilateral hearing loss is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to an evaluation in excess of 10 percent from December 23, 2015 to July 28, 2019 for bilateral hearing loss is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to an evaluation in excess of 20 percent from July 29, 2019, for bilateral hearing loss is not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1958 to June 1962 and from February 1963 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions dated in December 2014 and February 2016 by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the AOJ increased the Veteran’s service-connected bilateral hearing loss to 10 percent, effective December 23, 2015. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claim. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In a November 2017 decision, the Board denied the initial rating claims for bilateral hearing loss. However, the November 2017 Board decision was vacated by the Board in January 2019, in light of the Board’s failure to allow the Veteran to present testimony before the Board prior to promulgating a decision. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is included in the electronic claims file. In September 2020, the AOJ increased the Veteran’s evaluation for service-connected bilateral hearing loss to 20 percent, effective July 29, 2019. This additional assignment of benefits is not considered to have resolved his claim. In October 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an initial compensable evaluation from July 30, 2010 to December 22, 2015 for bilateral hearing loss is denied. 2. Entitlement to an evaluation in excess of 10 percent from December 23, 2015 to July 28, 2019 for bilateral hearing loss is denied. 3. Entitlement to an evaluation in excess 20 percent from July 29, 2019, for bilateral hearing loss is denied. The Veteran seeks entitlement to a higher initial rating throughout the entire appeal period for his bilateral hearing loss. The Veteran contends that his hearing loss should be measured in a non-sterile environment. See July 2018 Correspondence. He also contends that his wife has to interpret phone conversations for him. The Veteran contends that the RO failed to list the Veteran’s hearing on any rating decision, failed to consider an email submitted stating that the applicant could not hear the telephone, a medical form stating, “hard of hearing.” The Veteran states that this evidence demonstrates that the Veteran’s hearing is more than mild, and that the Veteran has “noticeable difficulty using the phone and conversing face-to-face with medical examiners.” See October 2020 Brief/Correspondence. The Veteran also provided treatise material that described how hearing works and how the author defines levels of hearing loss. See October 2020 Correspondence. He contends he should be receiving a 50 percent rating and that the only evidence used was the “sterile environment test done with the VA hearing lab.” See July 2018 Correspondence. The Veteran received a rating decision awarding him service connection for bilateral hearing loss, in December 2014, with an effective date of July 30, 2010, therefore, the appeal period begins on July 30, 2010. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R.§ 4.85(a). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate, the use of Table VIa is warranted. In February 2011, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 50 60 75 54 LEFT 30 40 50 55 44 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 in the left ear. The Board has considered the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing impairment, but the Veteran’s puretone thresholds during the appeal period summarized above do not conform to criteria listed in this regulation. These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of II in both ears. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the February 2011 VA examination to be zero percent. In March 2015, the Veteran submitted a letter indicating he thinks that decibel level equates with rating. Specifically, he states, that the initial rating decision indicated that “the average decibel loss is 53.8 in the left ear and 43.8 in the right here which to me indicated an appropriate 50% hearing loss which is consistent with what I feel I have lost in my hearing ability.” He then states that he can no longer watch television, without watching the persons lips move, and then still does not catch everything. The Veteran submitted emails from December 2015 and March 2016 that demonstrate that he has hearing issues when corresponding with others. See February 2017 Email Correspondence. In December 2015, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 55 60 70 56 LEFT 40 50 60 60 53 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 in the left ear. These puretone threshold average and speech discrimination figures lead to Roman numeral designations of V and IV in the right and left ears, respectively. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the December 23, 2015 VA examination to be 10 percent. In February 2017, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 50 55 55 55 54 LEFT 45 55 60 60 55 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 76 in the left ear. These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of IV in both ears. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the February 17, 2017 VA examination to be 10 percent. In March 2017, the Veteran’s spouse submitted an affidavit stating that she has to interpret for her husband. She stated that when he has a phone call, “in order to help him understand what is being said as he cannot distinguish what the people are saying although he seems to be able to hear somebody talking. He tells me it’s almost like being in a fog where there is light, but you cannot see distinct objects.” She indicated that it is worse when they are at a restaurant or somewhere there is outside noise, he then is “completely unable to hear anything distinctly.” In February 2019, the Veteran received a VA examination for his hearing impairment. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 60 65 60 65 62.5 LEFT 50 60 60 65 58.75 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 in the left ear. These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of V in the right ear and IV in the left ear. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the February 19, 2019 VA examination to be 10 percent. However, 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. Here, the Veteran meets the requirement in his right ear because his puretone threshold averages are 60 or higher in the appropriate thresholds. The Veteran’s left ear does not meet the requirement because his 1000 decibels level is only 50. Using Table VIA, leads to a Roman numeral designation of V in the right ear, and using the VI table for the Veteran’s left ear leads to a Roman numerical designation of a IV level. Thus, regardless of table used, the Board determines the percentage evaluation for hearing impairment at the February 17, 2019 VA examination to be 10 percent. In May 2019 the Veteran testified at a Board hearing regarding his bilateral hearing loss. The Veteran testified that he retired from his attorney practice because he could not hear at a deposition, so he had to retire. He testified that he is still wrapping up matters, but if they were overly complicated, he gave them to someone else. He testified that he could not hear people on the telephone or hear conversations around him. The Veteran testified, I’ve lost about half of my hearing. Also the social life is not -- I can’t -- my wife gets to talking to somebody and we get in a -- and I can’t participate. I feel like I might as well just be outside of the room because you’ll talk to me and say something. I may nod my head, but I haven’t got the foggiest idea what you just said. In September 2019, the Veteran received a VA examination for his hearing impairment. The Veteran reported that he cannot hear things and must use closed captioning. He also stated that it was annoying that he cannot use ear buds. The Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 65 70 70 70 68.75 LEFT 55 65 65 65 62.5 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 82 in the left ear. These puretone threshold average and speech discrimination figures lead to a Roman numeral designation of IV in both ears. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the September 28, 2019 VA examination to be 10 percent. However, 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. Here, the Veteran meets the requirement in both ears because his decibels are 60 or higher in the appropriate thresholds. Using Table VIA, leads to a Roman numeral designation of V in both ears. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the September 28, 2019 VA examination to be 20 percent. The Veteran has argued that his hearing loss is more severe than was reflected by his assigned evaluations. Specifically, the Veteran contends that he cannot hear people on the phone, or people behind him. He must read people’s lips or have his wife interpret for him. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is competent to describe observable symptoms and impairments he experiences (e.g., diminished hearing and the use of hearing aids). However, as a lay person, he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The Board acknowledges the Veteran’s contention that his hearing testimony was not listed on the rating decision. The Board finds that this was inadvertent, and that the AOJ’s analysis is consistent with the record. In addition, the Board notes that the Veteran contends that his rating should be higher because his decibel losses in both ears were near or above 50 percent during some of the tests. The Veteran is misinterpreting how ratings are derived. The average decibel loss and the speech recognition ability in each ear are plugged into the tables as discussed above. This means that even if a Veteran has a 50 percent decibel loss, the Veteran will not necessarily receive a 50 percent rating. The Board also acknowledges the Veteran’s contention that a sterile environment would be a better indicator of his hearing loss. However, according to 38 C.F.R. § 4.85(a) an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. The test must also be given consistently among all Veteran’s and it is contemplated within the rating criteria that the Veteran may have an inability to hear or understand speech or to hear other sounds in various contexts. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board has also considered medical literature submitted by the Veteran which discusses the different types of hearing loss and how the author defines severity of hearing loss. However, the Board finds this evidence offers very little probative value because the article is general in nature, does not relate to the specific facts of circumstances of the Veteran’s case, and is not accompanied by the opinion of any medical expert. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). In addition, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. As discussed above, the Board has determined that the Veteran is not entitled to an initial rating that is compensable. The February 2011 VA examination revealed, that his puretone threshold average and speech discrimination figures lead to Roman numeral designations of II in both ears. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the February 2011 VA examination results in a noncompensable rating. There are no examinations of record prior to December 2015, that demonstrate that the Veteran would be entitled to a compensable rating. The Veteran is also not entitled to a rating in excess of 10 percent from December 23, 2015 to July 28, 2019. Specifically, the puretone threshold average and speech discrimination figures lead to Roman numeral designations of V and IV in the right and left ears, respectively. 38 C.F.R. § 4.85(h) Table VI. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the December 23, 2015 VA examination to be 10 percent. There are no examinations prior to this date that demonstrate that the Veteran’s hearing loss meets the criteria for 10 percent. Finally, the Board has determined that the Veteran is not entitled to a rating in excess of 20 percent prior to July 29, 2019. As discussed above, using Table VIA, leads to a Roman numeral designation of V in both ears. Combining those numeric designations in Table VII, the Board determines the percentage evaluation for hearing impairment at the September 28, 2019 VA examination to be 20 percent. There are no examinations prior to this date that demonstrate that the Veteran’s hearing loss meets the criteria for 20 percent. In addition, there are no examinations of record that demonstrate that the Veteran’s hearing is worse after the September 2019 examination. Thus, the Veteran is not entitled to a rating in excess of 20 percent from July 29, 2019. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The Board is bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In conclusion, the preponderance of the most probative evidence weighs against entitlement to a compensable rating for bilateral hearing loss. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total disability rating based on individual unemployability due service-connected disabilities (TDIU) The Veteran seeks entitlement to a TDIU. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service connected for bilateral hearing loss, rated at 10 percent disabling prior to July 29, 2019, and as 20 percent disabling from that date; tinnitus, rated as 10 percent disabling; lumbosacral strain with degenerative arthritis of the spine associated with right foot degenerative joint disease, rated as 20 percent disabling; right foot degenerative joint disease, rated as 10 percent disabling; metatarsalgia, left foot associated with right foot degenerative joint disease, rated as 10 percent disabling, and radiculopathy right lower extremity associated with lumbosacral strain with degenerative arthritis of the spine, rated as 10 percent. The Veteran has a combined disability rating of 60 percent. Thus, the schedular percentage requirements for a TDIU were not met, as the Veteran did not have a single service-connected disability ratable at 60 percent or higher or a combined rating of 70 percent or higher. Nevertheless, the Board will consider whether the Veteran’s service-connected disability prevented him from securing or following a substantially gainful occupation during that period. See 38 C.F.R. § 4.16(b). The issue of entitlement to a TDIU on an extraschedular basis is a question of law and fact within 38 U.S.C. § 511(a). Therefore, although the Director of Compensation Services determined in this case that the Veteran is not entitled to a TDIU on an extraschedular basis, the Board is not bound by that determination. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Board will make a de novo determination on the issue. Turning to the relevant evidence of record, in January 2017, the Veteran submitted an application for increased compensation based on unemployability. The Veteran indicated that he was employed as an attorney and that he stopped working on December 31, 2016. He applied as a security guard in November 2016, but he could not hold the security position due to his inability to hear the radio dispatcher. In February 2017, the Veteran submitted a statement that indicated that he worked as a solo attorney and worked 20-30 hours per week, until approximately a year and a half ago, when his hearing became worse. He stated that he could not hear phone conversations, courtroom conversations at hearings, and clients in the office. He stated he was forced to retire from his practice due to his hearing loss. He also attached emails from his business clients that demonstrate that he has hearing loss that impacts his work. He also stated that his wife has to interpret phone conversations for him because he cannot hear. In February 2017, the Veteran underwent an audiological evaluation. The examiner opined that the Veteran’s hearing loss does not preclude him from obtaining gainful employment. “Those with hearing loss may experience difficulty understanding speech in noisy environments. This issue may be easily resolved with techniques such as amplification with directional microphones, assisted listening devices, and communication strategies.” In May 2019 the Veteran testified at a Board hearing regarding his bilateral hearing loss. The Veteran testified that he retired from his attorney practice because he could not hear at a deposition, so he had to retire. He testified that he is still wrapping up matters, but if they were overly complicated, he gave them to someone else. He testified that he could not hear people on the telephone or hear conversations around him. The Veteran testified, I’ve lost about half of my hearing. Also the social life is not -- I can’t -- my wife gets to talking to somebody and we get in a -- and I can’t participate. I feel like I might as well just be outside of the room because you’ll talk to me and say something. I may nod my head, but I haven’t got the foggiest idea what you just said. In February 2019, the Veteran underwent a VA audiological examination. The Veteran reported the following individual amplification needs in order of significance; hearing average conversation; hearing if he cannot see the speaker; hearing spouse; and hearing tv. The Veteran is dissatisfied with his hearing aids, and the testing in general. He believes that it does not test for real life situations. The examiner noted potential barriers to learning include his hearing impairment. During the Veteran’s September 2019 audiology examination, the Veteran reported that he cannot hear and has to use closed captioning, and that it is annoying that he cannot use ear buds. He also reported having a constant buzz, due to his tinnitus. In determining whether the Veteran was entitled to a TDIU, the Board considers the Veteran’s level of education and previous work experience. See 38 C.F.R. §§ 4.16. The Veteran has indicated that he has worked as an attorney. The Board finds that the Veteran’s education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as clerical, inspection, sorting, or assembly work. The Veteran has past work experience as a security guard, “but had to quit because he missed too many calls and missing the calls may be injurious to his fellow security people.” See October 2020 Correspondence. The Board acknowledges that the Veteran reported that he is not able to speak socially with people because he cannot hear them; cannot watch television because it comes out as mumbling; cannot attend court hearings for his client’s benefit because he cannot hear; and he cannot socialize with people through conversations such as baseball, football etc. Id. The Board finds that although the Veteran may no longer be able to perform his past work, his work history would not prevent him from transitioning to an unskilled or semi-skilled occupation, or from securing or following an unskilled or semi-skilled occupation, which do not require special training and can be learned on the job site. The Board also acknowledges that the Veteran could be limited in some jobs if they require extensive training due to hearing loss, but this limitation would not preclude the Veteran from performing unskilled, or semi-skilled positions. The Board does not doubt the Veteran’s reports that his service-connected disabilities limit his functional abilities. The Veteran has not reported, and the record does not reflect that the Veteran’s other service-connected disabilities impact his ability to secure substantially gainful employment. When only his service-connected disabilities are considered, the Veteran is limited to work in quiet environments and in positions that do not require communication with coworkers, supervisors, or the general public on an ongoing basis. With such remaining functional capacity, the Veteran would be able to perform the duties required for sorting, inspection, clerical, or assembly work. As such, the probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Rather, due to his service-connected disabilities, the Veteran is limited to work in quiet environments and in positions that do not require communication with coworkers, supervisors, or the general public on an ongoing basis. He has a juris doctorate level education and his occupational experience does not further limit his ability to secure and follow substantially gainful unskilled or semi-skilled employment, such as sorting, inspection, or assembly work. Accordingly, the preponderance of the evidence is against a finding of entitlement to a TDIU, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.