Citation Nr: 21013393 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-58 653 DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU based on service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1951 to November 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has twice denied the Veteran’s TDIU claim. Each time, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court), who, in turn, vacated the Board’s decision and remanded the matter for readjudication. In the last appeal, the Veteran’s attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary because “the Board failed to properly apply the Court’s holding in Ray v. Wilkie.” In October 2020, the Court granted the parties’ joint motion, sending the case back to the Board for readjudication. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. “[A] remand” from the Court is not “merely for the purpose[] of rewriting the opinion so that it will superficially comply with the ‘reasons or bases’ requirement.” Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). It is “meant to entail a critical examination of the justification for the decision.” Id. The Board’s analysis of the Veteran’s claim is undertaken with that obligation in mind. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran falls into the first category. At the start of the appeal period, the Veteran’s hearing loss was rated 50 percent disabling and his tinnitus 10 percent disabling. At first glance, it may appear that the Veteran does not have a disability ratable at 60 percent or more. But by regulation, disabilities affecting a single body system, such as impairment of auditory acuity, are considered one disability. 38 C.F.R. § 4.16(a). When combined into one rating, the Veteran’s hearing loss and tinnitus are 60 percent disabling. Therefore, the Board finds the Veteran meets the threshold rating criteria throughout the appeal period under 38 C.F.R. § 4.16(a). Starting with a TDIU’s economic component, the Veteran is currently unemployed, relying on his VA and Social Security Administration (SSA) benefits for financial support. As a result, the Veteran’s earned annual income does not exceed the poverty threshold for one person, and he meets a TDIU’s economic component. The question before the Board then is whether the evidence of record meets the non-economic component—the ability to follow and secure employment. The Veteran’s highest level of education is high school. His primary specialty during service was machinist mate with a related civilian occupation of engineer, chief marine. When he filed his service connection claim, the Veteran explained that he worked in the engine room aboard the U.S.S. Block Island. After separation, he worked for a local company installing heating, ventilation, and air conditioning units and then went into business for himself doing the same work. By the time he retired in 1998, the Veteran had over forty years of experience in the field. During retirement, the Veteran operated a small farm, managing livestock and crops until he became too disabled to do even that in December 2009. During the appeal period, the Veteran reported to three VA examinations related to his service-connected disabilities: December 2015, March 2016, and March 2017. At the first examination, the examiner found the Veteran’s hearing loss impacted the ordinary conditions of daily life by making it difficult for him to understand speech but did not preclude employment. She did not provide a rationale for her unemployability opinion. Unlike his hearing loss, she concluded that the Veteran’s tinnitus did not impact him functionally. At the second examination, the examiner found that the Veteran’s hearing loss and tinnitus did not cause functional impact or preclude employment. No rationale was offered. And at the last examination, the examiner determined that both the Veteran’s hearing loss and his tinnitus impacted the ordinary conditions of his daily life, including his ability to work. Specifically, the Veteran described difficulty hearing in noisy environments, in group situations, and from a distance. He also reported being unable to hear high-pitched noises without his hearing aids. And even with his hearing aids, he often misunderstands people unless they are facing him. For his part, the Veteran submitted two private medical opinions, an initial vocational assessment report from a vocational expert (with an addendum), and a statement from his daughter supporting his claim. Beginning with the January 2016 private medical opinion, the Veteran’s healthcare provider opined that his service-connected disabilities render him unemployable. She explained that his disabilities prevent oral communication, whether face-to-face or by telephone. As a result, he could not work at a job that required normal hearing or good speech understanding. And realistically, she recommended the Veteran avoid noisy environments altogether or else risk exacerbating his hearing. She reiterated her conclusion in June 2016 and December 2017. In January 2020, VA received another private medical opinion from a different healthcare provider. After reviewing the relevant medical evidence, he opined that the Veteran’s service-connected disabilities preclude employment. Citing a study on the socioeconomic impact of hearing loss, he noted that people with severe or profound hearing loss (1) earn substantially less than their peers, and (2) are more likely to be unemployed or underemployed. He also agreed with the earlier medical opinion that the Veteran risks exacerbating his hearing if he did not avoid noise. In addition to the two private medical opinions of record, the Veteran submitted an initial vocational assessment report from a vocational expert. An addendum was received following the Board’s most recent denial. After reviewing his claims file and personally interviewing the Veteran, the vocational expert opined that the Veteran’s hearing loss and tinnitus render him unemployable. Relying on the Department of Labor’s Dictionary of Occupational Titles, the expert pointed out that the Veteran’s relevant work experience occurred in moderate or loud noise environments. She also noted that hearing and talking were listed among the essential requirements for heating, ventilation, and air conditioning work. Part of the job involves face-to-face customer interaction about the customer’s wants and needs and using his hearing as a tool to help diagnose problems when equipment malfunctioned. Significantly, the Veteran relayed in the phone interview that he does not know how to use much of today’s modern technology—computers, fax machines, copiers, or mobile phones. Based on that, the vocational expert concluded that the Veteran has no vocational education, experience, training, or transferrable skills for current unskilled labor that does not require hearing, modern technology skills, or business management skills as part of the essential job duties. Finally, following the Board’s prior denial, the Veteran’s daughter submitted a statement supporting his TDIU claim. When the Veteran went into business for himself, she clarified that the Veteran handled the work at the job site while the Veteran’s spouse dealt with the administrative side of the business—payroll, taxes, billing, accounting, etc. He relied on her because he did not have the necessary training or education for it. The Veteran’s daughter also described how she would “become his ears” by translating phone calls and conversations for him. The vocational expert made a similar observation in her report. To put the Veteran’s hearing loss into perspective, he reported during the interview with the vocational expert that he could not hear everyday noises such as phones, doorbells, sirens, whistles, and the like. And although he wears hearing aids, he is not able to turn them up louder. Circling back to the legal criteria, a TDIU’s noneconomic component focuses on the Veteran’s history, education, skill, and training and whether he can perform the physical and mental acts required by the occupation at issue. See Ray, 31 Vet. App. at 73. “Factors that may be relevant include . . . auditory . . . limitations.” Id. Here, the Veteran has not been awarded service connection for any disabilities or diseases other than his hearing loss and tinnitus. Thus, the relevant question before the Board is whether the Veteran’s hearing loss and tinnitus prevent him from performing the physical acts required by his occupation considering his history, education, skill, and training. The Board concludes that it does. “The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). “Part of the Board’s consideration of how much weight to assign is the foundation upon which the medical opinion is based.” Id. at 302. Here, two examiners opined that the Veteran’s service-connected disabilities did not preclude employment. Neither offered a rationale for their opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). The Veteran’s private medical opinions and vocational assessment are better reasoned and supported than their VA counterparts. See Nieves-Rodriguez, 22 Vet. App. at 304 (“It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). Accordingly, the Board assigns them greater probative weight. To summarize, the Veteran’s highest level of education is high school. His longest-held job, by far, is in heating, ventilation, and air conditioning (40-plus years). His healthcare provider opined that his service-connected disabilities prevented him from oral communication and that he needed to avoid loud noise environments or risk exacerbating his hearing. The vocational expert emphasized how much of the Veteran’s work experience required hearing, talking, and loud noise environments as part of the job and how he lacked other transferable skills like those involving technology or business management. The Veteran’s daughter submitted a statement corroborating some of this evidence. Lastly, the contrary medical opinions of record offer no support for their conclusion. On this record, the Board finds a TDIU warranted throughout the appeal period. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.