Citation Nr: 21007438 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-05 884 DATE: February 9, 2021 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The evidence does not indicate that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision from the Regional Office (RO) of the Department of Veterans Affairs (VA). This case has previously been before the Board, most recently in June 2019, at which time the issue on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that additional issues were also remanded by the Board for additional development in June 2019. However, following the issuance of an October 2020 supplemental statement of the case, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, and opted to have those other issues considered under the modernized review system. As such, only the issue of entitlement to a TDIU remains before the Board under the Legacy review system. Entitlement to TDIU The Veteran has asserted that his service-connected disabilities prevent him from obtaining and maintaining gainful employment. A review of the record shows that the Veteran has only been in receipt of service-connected compensation benefits beginning May 4, 2017. As such, entitlement to a TDIU prior to May 4, 2017, is not warranted as the Veteran was not service-connected for any disability. However, beginning May 4, 2017, the Veteran has been service-connected for bilateral hearing loss disability, rated 80 percent disabling; and tinnitus, rated 10 percent disabling. Therefore, the Veteran has met the schedular criteria for assignment of a TDIU beginning May 4, 2017. 38 C.F.R. § 4.16 TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16 (a). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in and of itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341 (a), 4.16, 4.19. Van Hoose, 4 Vet. App. at 363. A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Veteran has reported that he last worked full-time in 2008. He reported that prior to 2008, he had worked for a masonry company in a variety of capacities. He reported that he had worked as an office worker, a laborer, and a sky track operator. The Veteran has a high school education, and attended two years of college. In the Veteran’s April 2009 statement in support of his claim of a TDIU he stated that his depression and anxiety made it almost impossible for him to hold a job. There was no mention of his hearing loss or tinnitus causing him to be unable to obtain or maintain substantially gainful employment. The Veteran is not service-connected for a mental health disability. Therefore, according to the regulations these issues cannot be considered when determining if a TDIU is warranted. At a June 2017 VA audiology evaluation, the Veteran reported that his hearing loss caused problems in multiple listening situations. He reported he experienced difficulty hearing in the presence of background noise, when he was unable to see the person’s face for lip reading opportunity, and when the person or sound source was at a distance. The Veteran reported that his tinnitus interfered with his hearing. However, despite relatively severe hearing loss, the examiner did not indicate in the report that the Veteran would be unable to work as a result of his bilateral hearing loss disability and tinnitus, even after considering the functional impairment noted by the Veteran. The Board finds that the Veteran’s service-connected bilateral hearing loss disability and tinnitus do not prevent him from obtaining and maintaining gainful employment. While the Board does acknowledge the Veteran’s relatively severe hearing impairment, there is no indication that such impairment would cause him to be unable to obtain and maintain gainful employment. Further, the Veteran is currently compensated at the 80 percent rate for the impairment caused by that disability. Additionally, the Veteran has not indicated that his bilateral hearing loss disability and tinnitus alone, without consideration of impairment caused by nonservice-connected disabilities, prevents him from working. Therefore, the Board finds that the Veteran’s service-connected disabilities alone do not render him unable to secure and follow substantially gainful employment consistent with his education and industrial experience. Accordingly, the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.