Citation Nr: 21012374 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-32 800 DATE: March 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran had active service between July 1959 and July 1962. 2. The Veteran is service connected for hearing loss at 50 percent and tinnitus at 10 percent; he has not been unable to secure or follow a substantially gainful occupation solely as the result of his service-connected disabilities for the entire period on appeal. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, on multiple occasions, most recently in September 2020, the Board remanded the Veteran’s claim for compliance with a June 2018 Joint Motion for Remand issued by the Clerk of the Veterans Claims Court, to include the issuance of an addendum medical opinion. The case has now been returned to the Board for further appellate action. Turning to the laws and regulations, substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and maintain a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran is service connected for bilateral hearing loss at 50 percent and tinnitus at 10 percent. The combined rating was 60 percent for the entire period on appeal. Therefore, the schedular criteria for a TDIU have been met. The Veteran reported that he was last able to work full-time on December 31, 2010, and became too disabled to work at a level consistent with his prior experience at the same time. A review of the record reveals that he had experience as a computer programmer and driver and was a high school graduate. In a December 2011 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The examiner opined that with amplification and appropriate accommodations, hearing loss would not limit the Veteran’s vocational potential or limit participation in most work activities. Similarly, the examiner explained that tinnitus was a common symptom and would not hinder the Veteran’s ability to function in the workplace. In a subsequent February 2012 buddy statement, the Veteran’s wife described his hearing loss, noting that without hearing aids, it was difficult for her to talk to him without straining her voice. She stated that he reported frustration coming home from work and having difficulty understanding participants in a meeting, conference, or telephone conversation. She said that he wanted to apply for a promotion but was afraid that his hearing loss would prevent him from doing the job. She recalled that he thought that he would be able to perform at a higher level professionally if he could hear better and comprehend conversation. The Veteran elaborated in an additional February 2012 statement, explaining that without hearing aids he felt his world was muted and that even with them, he was still unable to hear and comprehend conversations during meetings, conferences, seminars, telephone conversations, and one-to-one or small group conversations. He noted that he tried to sit in front or in a central location during meetings, but still had difficulty hearing and opined that his hearing loss hindered his ability to achieve career advancement and obtain job opportunities. Lay witnesses, such as the Veteran and his wife, are generally competent to describe events capable of lay observation, to include the impact of his service-connected hearing loss and tinnitus on his life and career and the Board finds their statements to be credible. However, they are not competent to assess whether his service-connected disabilities alone inhibit his ability to obtain or maintain substantially gainful employment. As such, the February 2012 lay statements are assigned lesser probative value. In medical treatment notes between February 2012 and February 2013, a clinician opined that with amplification and reasonable accommodations, the Veteran’s hearing loss would not significantly affect his vocational potential or limit participation in most work activities. The clinician offered that employment would be “more than feasible” in a loosely supervised situation. The clinician again noted that tinnitus, as a common symptom for many people, would not hinder the Veteran’s ability to function in the workplace. In a February 2013 private medical opinion, a clinician diagnosed severe to profound sensorineural hearing loss and noted tinnitus. The clinician opined that his hearing loss and tinnitus rendered the Veteran unemployable. The clinician recommended that the Veteran avoid working in any environment with noise that could exacerbate his hearing loss. The clinician offered that as a result of the Veteran’s deficits, he would be unable to engage in verbal communication, whether face-to-face or over the phone, even with the use of amplification. The clinician found that the Veteran’s disabilities posed a safety risk in any job setting involving the use of transportation, driving, or being around heavy or moving machinery and ultimately submitted that his service-connected disabilities impaired his employability in most job assignments with or without adaptations or amplification. The February 2013 clinician assessed the Veteran’s employability but did not address whether his capacity to obtain or maintain substantially gainful employment was impacted, and whether it was hindered solely because of service-connected disabilities. Accordingly, while the February 2013 private medical opinion weighs in favor of the claim, it is assigned lesser probative value. Subsequently, the Veteran reiterated the impact of his service-connected disabilities in March 2015 and August 2020 lay statements. He described being severely restricted in watching television or listening to the radio. While hearing aids “helped immensely,” he reasserted that his hearing loss still prevented him from hearing or comprehending conversations in meetings, conferences, seminars, and telephone conversations. He noted that he remained unable to hear well enough to comprehend subject matters and participate in meetings, conferences, seminars and family gatherings, even when sitting up front or in a central location, and asserted that his hearing difficulties inhibited his ability to progress and obtain career advancement and job opportunities. He further contested allegations made that he quit his job specifically in order to file for a TDIU, noting that he was released from his last job as a part-time driver three years before the February 2013 private medical opinion was issued. As noted above, the Veteran is competent to describe the impact of his hearing loss on his ability to work but is not competent to determine whether his service-connected disabilities alone resulted in an inability to obtain and maintain substantially gainful employment. As such, while the Veteran’s credible March 2015 and August 2020 lay statements weigh in favor of the claim, they are also assigned lesser probative value. More recently, in June 2016, July 2016, July 2019, November 2020, and December 2020 VA examinations, the examiners diagnosed sensorineural hearing loss and recurrent tinnitus and found that they impacted his ability to work through difficulty hearing on the telephone, understanding conversations, and communicating with his wife. The examiners opined that his service-connected disorders would not render him unemployable, noting that he had a regular retirement from his last job. The examiners consistently offered that, with amplification and reasonable accommodations, hearing loss alone would not have a significant impact on his vocational potential, limit his ability to participate in vocational activities, or otherwise cause difficulty in a work environment. The examiners further found that employment would be “more than feasible” in a loosely supervised situation, noting that he performed well with a cochlear implant and hearing aids and was able to communicate with clinicians during VA appointments. Read together, the VA examinations are adequate because the examiners thoroughly reviewed the claims file and discussed the relevant evidence- to include whether the Veteran was capable of obtaining or maintaining substantially gainful employment. As such, the VA examinations are assigned greater probative value and weigh against the claim. Based on the above, entitlement to a TDIU is not warranted. In this regard, the February 2013 private clinician opined that the Veteran’s hearing loss rendered him unemployable in most job assignments with or without amplification or accommodations. Moreover, VA examiners between June 2016 and December 2020 found that his hearing loss impacted his ability to work. On the other hand, clinicians between February 2012 and February 2013 and VA examiners between June 2016 and December 2020 opined that he was not unemployable as a result of his service-connected disabilities, noting that he had a regular retirement and finding that with amplification and accommodations, his hearing loss alone would not significantly impact his vocational potential, limit his ability to participate in vocational activities, or otherwise result in his having difficulty in a work environment. Therefore, the evidence shows that unemployability was not due to service-connected tinnitus and hearing loss. Rather, the record indicates that the Veteran retired voluntarily and that he would be able to work in a loosely supervised environment with amplification and accommodations. In sum, the medical and lay evidence do not support entitlement to a TDIU and there is no doubt to be otherwise resolved. The Board has considered lay statements submitted by the Veteran and his wife regarding his capacity to work throughout the entire period on appeal. His primary contention is that he felt that hearing loss caused loss of advancement rather than rendered him unemployable. His wife has provided statements that he has difficulty hearing. While lay witnesses are competent to report symptoms and observations because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s unemployability has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.