Citation Nr: 21023086 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 08-06 985 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran completed a bachelor’s degree in science and math, a master’s degree in management, and a specialist degree in education. He had experience as a classroom teacher, high school principal, school district research director, school district project director, account executive as a staffing firm, president and CEO of a staffing firm, and vice president of an education-directed information technology firm, and, prior to his death, had not worked since January 2006. 2. At the time of his death, the Veteran’s sole service-connected disability was bilateral hearing loss, ratable as 40 percent disabling from February 9, 2012; prior to February 9, 2012, the Veteran’s bilateral hearing loss was rated as noncompensable from October 30, 2006 to March 23, 2010 and 10 percent disabling from March 23, 2010 to February 9, 2012. 3. The preponderance of the evidence shows that, prior to his death, the Veteran was not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1955 to February 1957. He died in May 2018. The appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 Department of Veterans Affairs (VA), Regional Office (RO), rating decision. In that rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective from October 30, 2006. In July 2007, VA received the Veteran’s notice of disagreement. In February 2008, the RO issued a Statement of the Case. In February 2008, VA received the Veteran’s Appeal To Board Of Veterans’ Appeals (VA Form 9). In June 2009, the Veteran testified at a video conference hearing at the RO before the undersigned. A transcript of that testimony is of record. In January 2010, the Board remanded the case for further development and adjudicative action. In an August 2010 rating decision, the RO increased the disability rating for the service-connected bilateral hearing loss from noncompensable to 10 percent, effective from March 23, 2010. In February 2011, the Board denied an initial compensable disability rating prior to March 23, 2010 and a disability rating in excess of 10 percent for the service-connected bilateral hearing loss from March 23, 2010. The Board’s decision on the proper rating for the bilateral hearing loss is final and the issue has not since returned to the Board. However, the Board inferred a claim for TDIU as reasonably raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the claim for a TDIU for further development and adjudicative action. In March 2012, the Board again remanded the case for further development and adjudicative action. In pertinent part, the Board referred the claim for a TDIU on an extraschedular basis for consideration by the Director, Compensation Service (hereinafter “Director”). In a June 2013 rating decision, the RO increased the disability rating for the bilateral hearing loss from 10 percent to 40 percent, effective from February 9, 2012. In April 2014, the Director completed an advisory opinion regarding the claim for TDIU on an extraschedular basis. In September 2014 the Board for a third time remanded the case for further development and adjudication. Specifically, the Board again referred the case for consideration by the Director, and furthermore, instructed the RO to obtain an opinion regarding whether it was at least as likely as not that the Veteran’s bilateral hearing loss precluded substantially gainful employment from an industrial/occupational specialist. The examiner was instructed address the Veteran’s work qualifications, employment history, and level of education, and to specifically render a retrospective opinion regarding when, if ever, the Veteran became unemployable as a result of his service-connected bilateral hearing loss. In October 2016, the Director completed another advisory opinion regarding the claim for TDIU on an extraschedular basis. In a March 2017 decision, the Board denied the Veteran’s claim for a TDIU on an extraschedular basis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2017 Order granting a Joint Motion for Remand (JMR) the Court vacated the Board’s March 2017 decision and remanded the case for further development in compliance with the directives specified in the JMR. Specifically, the Court concluded that a March 2016 VA examiner relied upon by the March 2017 decision failed (1) to provide an opinion regarding whether it was at least as likely as not that the Veteran’s bilateral hearing loss at least as likely as not precluded from substantially gainful employment, (2) to address the Veteran’s work qualifications, employment history, and level of education, and (3) to render a retrospective opinion regarding when, if ever, the Veteran became unemployable as a result of his service-connected bilateral hearing loss. The Court also noted that the Board failed to seek clarification of the term “safety risk” as used in a March 2016 opinion. Therefore, the Court found that the Board failed to ensure substantial compliance with the terms of the September 2014 remand. As noted above, the Veteran died in May 2018. Thereafter, in July 2018, the Board dismissed the appeal due to the Veteran’s death. In January 2020, the appellant was substituted for the Veteran for purposes of continuing the appeal. In July 2020, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the December 2017 JMR. In December 2020, the Director completed a third advisory opinion regarding the claim for TDIU on an extraschedular basis. TDIU 1. Entitlement to a TDIU due to service-connected disabilities on an extraschedular basis. The appellant continues to assert that the Veteran’s service-connected bilateral hearing loss precluded maintenance of substantially gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a Veteran is not required to submit proof that he is 100 percent unemployable. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). Instead, the regulations contemplate more flexibility in the employability determination. Id. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment is not considered substantially gainful employment and is deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining the severity of impairment, 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). 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Despite failing to meet the threshold percentage standards set forth under 38 C.F.R. § 4.16(a), the Veteran may nevertheless warrant a TDIU if it is established by the evidence of record that his service-connected disability or disabilities has rendered him unable to secure and follow substantially gainful employment. If there is a possibility of substantiating such a claim, then the case is referred to the Director for extra-schedular consideration in the first instance. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b). Prior to his death, the Veteran’s sole service-connected disability was bilateral hearing loss, rated as noncompensable from October 30, 2006 to March 23, 2010, as 10 percent disabling from March 23, 2010 to February 9, 2012, and as 40 percent disabling from February 9, 2012 under 38 C.F.R. § 4.85, Diagnostic Code 6100. Therefore, prior to his death, the Veteran did not meet the schedular criteria for a TDIU. However, as discussed above, the case has been referred to the Director three times, and advisory opinions from April 2014, October 2016, and December 2020 are of record. According to the Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), received in December 2012, the Veteran last worked in January 2006. A resume received in June 2016 reveals the following history of employment: (1) public school science teacher from 1959 to 1965; (2) high school principal from 1966 to 1968; (3) school district research director from 1969 to 1974; (5) school district project director from 1975 to 1978; (6) account executive at an information technology personnel recruiting office from 1979 to 1981; (7) president and CEO of a personnel recruiting office from 1982 to 1987; (8) account executive for another information technology personnel recruiting office from 1987 to 1990; (9) resumption of role as president and CEO of a personnel recruiting office from 1990 to 1993; and (10) vice president of an education-directed information technology company from 1993 to 2006. Per his resume, the Veteran also had a bachelor’s degree in science and math, a master’s degree in management, and a specialist degree in education. Notably, the Veteran maintained continuous employment for approximately 47 years. Nonetheless, he reported experiencing job-related restrictions due to his bilateral hearing loss disability during his long career. During the June 2009 Board hearing, the Veteran testified that, following his post-service higher education, he was initially denied a teaching certificate because he failed a hearing test. Nevertheless, the Veteran was later awarded a teaching license. See June 2009 Board hearing transcript (hereinafter “Transcript”) at 4. In an April 2010 statement, the Veteran indicated that he found his employment as a teacher to be “extremely challenging … to function in the classroom with my hearing deficit.” As a result, despite his “dream … to be a classroom teacher” and previous training, he had to “hide out” in administration as a high school principal so that he had a secretary to “receive my calls and tell me who was on the line and what the topic was so I could be focused.” In a May 2011 statement, the Veteran indicated that, during his tenure as a classroom teacher, his “students loved my classes and I loved watching them learn to use their minds,” but he “soon discovered that I could not hear them well enough to lead and guide their discussions.” The Veteran reported that he left the education sector for the business sector because his “family was heading towards college and I needed to get more money.” However, he also indicated that his hearing impairment played a role in the decision to change careers. In particular, he experienced difficulties “when I had to go mix with people and interplay with them” and when trying to follow conversations. Transcript at 6. During employment as a “contractor,” the Veteran reported that he received criticism because he “wouldn’t go on site and visit my men as often.” In this regard, he noted that “he couldn’t function there” and “couldn’t go see [his employees] to say I can mentor them and help them perform better or to be perceived as performing better.” Id. at 7. Regarding symptomatology experienced during the period on appeal and prior to his death, the Veteran indicated that he had a “very questionable understanding of what a person has said” on telephone. Id. at 5. The Veteran’s wife reported that the Veteran was often unable to understand her during conversations. Furthermore, she noted that “[w]e have to really pick and choose where we can attend different functions at. There’s many functions that we miss because of the hearing.” As an example, the Veteran’s wife indicated that conversation would “cease” entirely in a restaurant. Id. at 12-13. Turning to the medical evidence of record, the Veteran relied on hearing aids throughout the period on appeal prior to his death. An August 2008 audiology progress note reflects that the Veteran reported not hearing well out of his hearing aids. However, inspection of the hearing aids showed that they were “plugged with debris.” During the visit, the treating audiologist assessed the Veteran to have “moderate to moderately severe sensorineural hearing loss bilaterally.” Audiology progress note dated August 14, 2008. During a March 2010 VA audiological examination, the Veteran registered speech discrimination scores of 88 percent for the right ear and 68 percent for the left ear (hereinafter assumed under the Maryland CNC word list unless stated otherwise). Average pure tone thresholds were 55 decibels for the right ear and 68.75 decibels for the left ear across the 500, 1000, 2000, 3000, and 4000 Hertz frequencies (testing under these frequencies is hereinafter assumed unless stated otherwise). However, the March 2010 VA audiologist concluded that the Veteran’s bilateral hearing loss had no effect on employment. The March 2010 audiologist provided additional elaboration in a November 2010 addendum. In this regard, the audiologist noted that “reasonable accommodations provided by employers (Americans with Disabilities Act [ADA]) along with hearing aids and assistive listening devices will enable individuals with hearing loss to obtain and maintain gainful employment.” Furthermore, the audiologist indicated that numerous individuals with hearing loss have achieved “prestigious employment positions (past presidents, actors, Miss America).” During an April 2011 VA audiological examination, the Veteran reported “trouble hearing on the telephone, hearing and understanding the clarity of his wife’s voice, and difficulty understanding speech in background noise.” During this examination, speech discrimination scores were 88 percent for the right ear and 72 percent for the left ear. Puretone thresholds were 56.25 decibels for the right ear and 68.75 decibels for the left ear. However, the April 2011 audiologist also concluded that the Veteran’s bilateral hearing loss would not preclude substantially gainful employment, noting the protections afforded by the ADA and issuance of hearing aids in 2008. In a February 2012 private audiological examination report, G.B., M.S. opined that the Veteran “would have a great deal of difficulty in any workplace environment (even with hearing aids) because of his poor speech discrimination ability.” Speech discrimination scores (stated as under the Maryland CNC) were 60 percent for the right ear and 50 percent for the left ear. Average pure tone thresholds were 57 decibels for the right ear and 63 decibels for the left ear. An April 2013 private audiological examination contains no opinion regarding impact of the Veteran’s bilateral hearing loss on employability and warrants no further mention. A May 2013 VA audiologist concluded that the Veteran’s bilateral hearing loss resulted in functional loss during “general conversation” but did not provide an opinion regarding employability. Speech discrimination scores were 72 percent for the right ear and 48 percent for the left ear. In an April 2014 advisory opinion, the Director concluded that entitlement to a TDIU on an extraschedular basis was not warranted. The limited rationale contained therein references only “the majority of the medical opinions provided” and a lack of “frequent hospitalizations, no emergency room visits, or surgical procedures performed due to [the Veteran’s] bilateral hearing loss.” An October 2014 VA audiologist tasked with examining the Veteran opined that the Veteran’s hearing loss “does not preclude gainful employment” because “the [ADA] provides for the use of reasonable accommodations to permit the employment of otherwise qualified employees/applicants.” The audiologist deemed speech discrimination testing inappropriate for the Veteran, but average pure tone thresholds were 61 decibels for the right ear and 75 decibels for the left ear. Of record are a March 2016 employment opinion and Ear Disease Disability Benefits Questionnaire (DBQ) completed by Dr. P.E.M, a Doctor of Occupational and Internal Medicine. Dr. P.E.M. concluded that the Veteran’s bilateral hearing loss would “substantially impact his ability to be gainfully employed.” In this regard, Dr. P.E.M. noted that, despite the use of hearing aids, the Veteran “has persistent difficulty communicating with others including quiet environments.” Furthermore, Dr. P.E.M. reasoned that the Veteran’s degree of hearing loss caused the Veteran to be “significantly impaired in his ability to communicate with others and is at in (sic) increased safety risk due to his hearing.” Dr. P.E.M. noted also that the Veteran’s hearing loss impairment had resulted in difficulty obtaining a teaching certification. Additionally, in the March 2016 DBQ, Dr. P.E.M. identified peripheral tympanosclerosis and possible ataxia resulting in two episodes of stumbling. However, the Veteran never submitted a claim for service connection for either of these disabilities. Accordingly, they warrant no further consideration in this analysis. In an October 2016 advisory opinion, the Director concluded that the Veteran’s bilateral hearing loss disability would not preclude all employment. The Director reasoned that “none of the VA examination opinions state that the Veteran is unable to work due to bilateral hearing loss.” Furthermore, the Director noted that the March 2016 opinion from Dr. M.E.P. “did not state the Veteran is unemployable,” but instead that the “hearing loss would substantially impact the Veteran’s ability to be gainfully employed.” As noted in the December 2017 JMR, the March 2016 opinion, which was relied upon by the March 2017 Board decision, failed to state whether it is at least as likely as not that the Veteran’s bilateral hearing loss disability precluded substantially gainful employment, address the Veteran’s work qualifications, employment history, and level of education, or render a retrospective opinion regarding when, if ever, the Veteran became unemployable as a result of his bilateral hearing loss. Furthermore, the Court noted that the opinion failed to define the term “safety risk” and found that further clarification was required before adjudication of the claim. The July 2020 Board decision remanded the claim for a new VA opinion by an occupational specialist or examiner with similar expertise to address these deficiencies. In addition, the decision also instructed consideration of the February 2012 opinion from G.B. in opinion and submission of new advisory opinion by the Director after the new opinion was received. In August 2020, a lengthy VA opinion completed by an audiologist was associated with the claims file. First, the audiologist reviewed the Veteran’s statements about his educational and work history and concluded that “the [V]eteran had a long and successful career as an educator, administrator, and consultant,” and further, “[b]y the [V]eteran’s own admission found in the correspondence to the VBA, he was successful both as an administrator and in his own private consulting company that he built.” Next, the audiologist concluded that “there was no objective documentation found in the complete electronic file that shows any evidence that the [V]eteran became unemployable as a result of his bilateral hearing loss.” In support, the audiologist stated the following: In fact, by the [V]eteran’s own written correspondence that he in fact had a long and successful career despite his hearing loss. There are no records that show that the [V]eteran was unemployed for any length of time, collected unemployment, collected social security disability, food stamp program, rejection letters from possible employers, or any other evidence that objectively documents that the [V]eteran was unable to locate or participate in a job due to his hearing loss. The audiologist also cited ADA guidelines requiring employers “to provide reasonable accommodations to employees with hearing loss.” Regarding applying for jobs, the audiologist noted that ADA guidelines prohibit employers to withdraw job offers upon disclosure or discovery of a hearing loss disability “as long as the person is able to do the job safely.” Next, the audiologist addressed the February 2012 opinion by G.B., stated above. Regarding the opinion, the audiologist stated: This audiologist performed a hearing evaluation on the [V]eteran and wrote her opinion accordingly. This author agrees that poor speech discrimination scores do make it difficult to hear speech in the presence of background noise. However, the degree of difficulty that poor speech discrimination ability causes for an individual varies greatly due to factors such as work setting/environment, workplace acoustics, number of people speaking at any given time, an individual’s ability to focus on a given talker, and any number of other factors. Furthermore, as noted in the December 2017 JMR and requested by the July 2020 Board remand, the audiologist defined the term “safety risk” as used in the March 2016 opinion by Dr. P.E.M., which was not defined in that opinion, as “taking many forms, for instance not hearing an ambulance, car horn or someone yelling in the face of imminent danger.” Regarding the impact of safety risks caused by hearing loss on the Veteran’s employability, the audiologist reviewed the Veteran’s most recent hearing loss evaluation and stated: [I]t is reasonable to assume that the [V]eteran would have had difficulty in hearing warning beeps and alarms. This may include fire alarms. However, most fire alarms, especially in an educational setting also include a strobe or flashing light that activates when the audible alarms activates (sic). The reason for this is to assist individuals with impaired hearing to become aware that the alarm was activated. Finally, the audiologist was unable to “cite a specific example of how the [V]eteran’s hearing loss would have impacted his employability as a teacher, principal, business owner or contract personnel.” The audiologist submitted the following rationale: The records indicate that the [V]eteran worked his entire career in an office type/school setting in a sedentary position. The work that he performed included teaching, administration, and consulting. The type of work performed did not require the individual to specifically be able to hear warning sounds, machinery noises, alarms, bells or whistles, such as would be required in a factory or work setting. This author finds no evidence that points to the [V]eteran’s hearing loss being a safety risk or affecting employability. There were no records that documented that the [V]eteran had deficiencies in any job performance reviews relating to his hearing and how it affected his or others (sic) safety in the workplace. The [V]eteran worked in an administrative function in a school setting. This author would suspect that if the [V]eteran’s supervisor or school board felt that there were issues related to safety of his ability to perform his job, there would be records of this, and none were found. It is apparent that the [V]eteran was charged with the safety of students. It seems reasonable that if there were issues of safety raised, then the [V]eteran would have been cited for this in his performance reviews, or even dismissed. There is no evidence found in the records presented that this was the case. The main point of contention is that the [V]eteran has stated many times in the appeals process that his hearing loss impacted his ability to perform as a teacher, administrator, and consultant. All of the evidence presented is the [V]eteran’s subjective experience. There is no objective documentation that supports this in the form of poor job reviews, or dismissal from any job. In December 2020, a third advisory opinion from the Director was associated with the claims file. The Director again concluded that the Veteran’s service-connected bilateral hearing loss “did not prevent gainful employment.” The Director cited the Veteran’s receipt of a master’s degree and “work experience as an educator, school principal, business owner, and contract personnel.” Furthermore, the examiner referenced Doucette v. Shulkin, 28 Vet. App. 366 (2017) to show that “inability to hear or understand speech or sounds in various contexts are the effects contemplated by the schedular [rating criteria]” under 38 C.F.R. § 4.85 and § 4.86. Based on the evidence summarized above, the Board concludes that the Veteran’s bilateral hearing loss disability did not preclude maintenance of substantially gainful employment. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014) and Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person’s ordinary activity (see 38 C.F.R. § 4.10), and such has been done here. The findings, comments and opinions of the VA examiners have been considered as pertinent evidence, along with the Veteran’s competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In this case, there is simply no evidence that the Veteran was rendered unemployable by his bilateral hearing loss. During the June 2009 Board hearing and in his statements of record, the Veteran described a long, successful career in education and business. While he suggested that he was unable to perform as well in his teaching duties as he would have liked because of his hearing loss, there is no evidence that the Veteran was rendered unable to work as a classroom teacher. Notably, during the June 2009 hearing, the Veteran first gave a financial motive for changing careers. Even assuming that the Veteran was rendered unable to work as a classroom teacher – his claimed profession of choice – because of his hearing loss, there is no evidence that the Veteran was wholly precluded from substantially gainful employment. In this regard, the crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran pursued a long career in business following his educational career. There is no evidence that the Veteran had difficulty maintaining employment during his business career. Again, during the June 2009 Board hearing, the Veteran indicated a belief that he may have been able to better perform, and be “perceived” as performing better, as a supervisor of employees if not for his bilateral hearing loss. However, the level of impairment as described by the Veteran is not consistent with total inability to maintain employment. He has cited numerous career successes in spite of his hearing loss and no specific failures because of his disability. That the Veteran was uncomfortable or felt inadequate as a classroom teacher due to his hearing loss and may have altered his career path as a result is insufficient for entitlement to a TDIU. Similarly, that the Veteran subjectively felt inadequate as a supervisor of employees during his business career also does not justify entitlement. Turning to analysis of the numerous medical opinions of record, the March 2010, April 2011, and October 2014 VA opinions rely heavily on the ADA’s restrictions on employment discrimination based on disability, but do not address the Veteran’s particular employment history and disability picture. Furthermore, the April 2011 audiologist’s statement regarding successful public figures with hearing loss is entirely irrelevant. Accordingly, these opinions are of limited probative value. Regarding the February 2012 private opinion by G.B., there is no rationale supporting the opinion that the Veteran would experience difficulty in any workplace environment due to his hearing loss. However, nowhere in the opinion does G.B. state or imply that the Veteran would be precluded from employment because of his hearing loss. Regarding the March 2016 employment opinion by Dr. P.E.M., Dr. P.E.M. opined only that the Veteran’s bilateral hearing loss would have a “substantial” – not preclusive – impact on the Veteran’s ability to maintain gainful employment. Furthermore, the rationale supporting the opinion cites only the Veteran’s general difficulties with communication, with no specific examples, and the vague notion that the Veteran’s bilateral hearing loss may have been a safety risk. However, under the expansive definition of a “safety risk” supplied by the August 2020 audiologist and as applied to the Veteran’s history of employment, Dr. P.E.M.’s suggestion that the Veteran’s bilateral hearing loss may have been a safety risk is unsupported by the evidence. Given the above, the March 2016 opinion is afforded little probative value. Finally, regarding the August 2020 VA opinion, the audiologist provided a clearly articulated opinion supported by a well-reasoned analysis of the Veteran’s employability in light of his history of bilateral hearing loss both during the period on appeal prior to the Veteran’s death and retrospectively. Moreover, the opinion specifically identifies and considers the Veteran’s work qualifications, employment history, and level of education, defines the term “safety risk” in the context of hearing loss and applies this definition to the facts of the case, and addressed the February 2012 by G.B. Given the above, the August 2020 opinion is afforded significant probative value. Furthermore, the August 2020 opinion substantially complies with the July 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Although the examining audiologist is not specifically identified by the opinion as an occupational specialist, the record provides no evidence that the audiologist lacked the necessary expertise to opine on the matter, particularly in light of the opinion’s high attention to detail. Additionally, as described in the above paragraph, the July 2020 opinion addresses all directives identified by the July 2020 remand. Turning to the three advisory opinions by the Director, the April 2014 advisory opinion appears to consider entitlement to an extraschedular rating rather entitlement to a TDIU on an extraschedular basis. As such, it is irrelevant and is afforded no probative value. Regarding the October 2016 advisory opinion, the Director’s conclusion that the Veteran’s bilateral hearing loss disability would not preclude all employment is supported by a limited rationale based on negative opinions by VA examiners and a lack of an indication – even from the more favorable opinions of record – that the Veteran was precluded from employment by his bilateral hearing loss. Accordingly, the October 2016 advisory opinion is afforded some probative value. Regarding the December 2020 advisory opinion, the Director noted the Veteran’s educational and professional background and observed that the Veteran’s functional impairments due to hearing loss are specifically contemplated by the schedular criteria. While the opinion is not highly probative in itself due to lack of specific analysis directed towards the Veteran’s employability in light of his educational and work history, the opinion does merit further discussion with regard to Doucette. To elaborate further on the December 2020 advisory opinion, although the Veteran’s bilateral hearing loss caused difficulty with speech discrimination, especially in noisy environments, this impairment is specifically contemplated by the diagnostic criteria. Notably, during the pendency of the appeal, the Court held in Doucette that impairments such as difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria. See Doucette, 28 Vet. App. at 371-72. In this case, every hearing impairment reported by the Veteran falls squarely within the manifestations identified in Doucette and within the schedular criteria for hearing loss. Accordingly, the Board concludes that the most probative evidence of record demonstrates that the Veteran’s service-connected bilateral hearing loss did not preclude him from following a substantially gainful occupation. In this regard, the evidence shows that the Veteran could successfully perform work in education and business environments consistent with his training and history of employment. As such, the preponderance of the evidence is against finding that the Veteran’s service-connected bilateral hearing loss was of such severity as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.