Citation Nr: 21025666 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 13-09 703 DATE: April 28, 2021 ISSUES 1. Entitlement to a compensable disability rating prior to January 4, 2021, and in excess of 50 percent thereafter, for a bilateral hearing loss disability. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). ORDER Entitlement to a compensable disability rating prior to January 4, 2021, and in excess of 50 percent thereafter, for a bilateral hearing loss disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted for the period from September 8, 2010 (exclusive of any period of temporary total disability rating), subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is no worse than level III in the right ear and level I in the left ear prior to January 4, 2020, and no worse than level VIII in each ear thereafter. 2. For the period from September 8, 2010, the Veteran is unable to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating prior to January 4, 2021, and in excess of 50 percent thereafter for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. With reasonable doubt resolved in favor of the Veteran, for the period from September 8, 2010, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1981 This appeal to the Board of Veterans’ Appeals(Board) arose from a May 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, inter alia, denied the Veteran’s claims for an increased (compensable) rating for right ear hearing loss and for service connection for left ear hearing loss. By way of background, in September 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in April 2013. In an August 2014 rating decision, the RO granted the Veteran’s claim for service connection for left ear hearing loss (resolving that claim), then evaluated the right and left ear hearing loss as bilateral hearing loss, and continued the noncompensable rating. In May 2016, in lieu of a hearing, the Veteran and his representative participated in an informal conference with a Decision Review Officer (DRO) at the RO. A report of that conference is of record. In June 2016, the DRO issued a supplemental SOC (SSOC) reflecting the continued denial of a compensable rating for bilateral hearing. In December 2016, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In August 2017, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further action, to include additional development of the evidence. After accomplishing further action, the AOJ continued to deny a compensable rating for bilateral hearing loss (as reflected in an April 2018 SOC and January 2019 (SSOC) and returned the matter to the Board. In June 2018, the Board remanded the claim on appeal, in part, for the AOJ to obtain from the Atlanta VA Medical Center (VAMC)a copy of the audiogram associated with an April 2016 audiology examination. In June 2019, the Board remanded the claim on appeal to the AOJ for further action, to include additional development of the evidence. After accomplishing further action, the AOJ continued to deny a compensable rating for bilateral hearing loss (as reflected in a May 2020 SSOC) and returned the matter to the Board. In November 2020, the Board remanded the matter on appeal to the AOJ for the purpose of obtaining an audiological examination to determine the current severity of this Veteran’s bilateral hearing loss disability. In a January 2021 rating decision, the Veteran’s disability rating for his bilateral hearing loss, currently rated at 0 percent disabling, was increased to 50 percent, effective January 4, 2021. See January 13, 2021 rating decision. As this rating decision does not represent a full grant of benefits for the course of the appeal period, the issue before the Board is whether the Veteran is entitled to higher ratings for the period before January 4, 2021 and thereafter. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board notes that the Veteran's attorney submitted a brief and private vocational opinion in February 2021 with a waiver of initial Regional Office consideration. Given the Veteran's substantive appeal was received after February 2, 2013, and the Veteran submitted a waiver, the Board will consider the additional evidence in the first instance and proceed with adjudication of the appeal as to the issues decided, below. See Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. The record before the Boards shows the Veteran has raised the issue of entitlement to a TDIU and has reported he last worked in 2010. See February 26, 2021, Veteran’s Brief in Response to Certification Letter. Because the record raises the possibility that the Veteran might be unemployable as a result of his service-connected disabilities, the issue of entitlement to a TDIU has been raised in connection with the claim on appeal for an increased rating for a bilateral hearing loss disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16(a) (2020). Entitlement to a compensable disability rating prior to January 4, 2021, and in excess of 50 percent thereafter, for a bilateral hearing loss. The Veteran contends that he is entitled to a higher disability rating for his bilateral hearing loss disability. See December 13, 2016 Video Conference Board Hearing transcript, pgs. 2-6. The Veteran's increased rating claim was received on September 8, 2010, therefore the appeal period before the Board begins on September 8, 2009, the date VA received the Veteran's claim for increased ratings, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. In cases where the original rating assigned is appealed, as is the case with the Veteran's claims of entitlement to higher evaluations for the bilateral hearing loss consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Hearing Loss In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1922). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity. Generally, the evaluation is determined after consideration of controlled speech discrimination ability and average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000 to 2,000, 3,000, 4,000 cycles per second (Hz). If, however, an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. the evaluation will be based solely on the Puretone threshold average. 38 C.F.R. § 4.85(c). If the evidence demonstrates the existence of exceptional patterns of hearing impairment, such as where testing reveals puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hz) or when the puretone threshold is 30 decibels or less at 1000 Hz and 70 or more decibels at 2000 Hz, the evaluation can be based on the puretone threshold average and speech discrimination ability or solely on puretone threshold average. 38 C.F.R. § 4.86. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Discussion During the course of this appeal, the Veteran was afforded Audiological Examinations in August 2011, June 2014, February 2018, October 2020 and January 2021 to determine the severity of this Veteran’s hearing loss disability. The Board finds that the examinations in August 2011, June 2014, February 2018 January 2021adequate for purposes of adjudication. Each of these examinations considered the functional impact the Veteran’s bilateral hearing loss disability had on the ordinary course of his life, including his ability to work. Further, each of these examinations included audiometric and speech discrimination testing. See 38C.F.R. § 4.85. In the October 31, 2020 examination, the audiologist noted that audiometric and speech discrimination were not administered due to wax impaction. Therefore, this examination is inadequate for adjudication purposes. See October 31, 2020 Audiological Examination, pg. 8; See also, November 2020 BVA Decision, pgs. 2-3. The Board also notes that an Audiology Report was associated with the claims file in October 2019. This the audiogram includes a notation that the “NU6 Word List” was used. As the Maryland CNC word list utilized by VA to evaluate hearing loss was not utilized (see 38C.F.R. §4.85), the Board is unable to consider the results of the speech discrimination testing conducted in April 2016 in evaluating the Veteran’s hearing disability. In other words, these test results remain inadequate for VA rating purposes because the VA audiologist did not use the Maryland CNC speech discrimination testing as required by VA regulation. 38 C.F.R. § 4.85 (a). See April 13, 2016, Progress Notes: Audiological Assessment. The Board now turns to a discussion of the Audiological examinations the Veteran was afforded during the course of this appeal. As referenced in the introduction of this decision, the Board’s discussion will encompass the period prior to January 4, 2021, and thereafter. The August 4, 2011 audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 Ave. Hz. 35 35 35 65 75 52.5 Left Ear Hertz 500 1000 2000 3000 4000 Ave. Hz. 25 30 30 25 35 30 Speech audiometry results using the Maryland CNC were 96 percent for the right ear and 96 percent for the left ear. The Veteran's hearing impairment was manifested by Level I hearing acuity in the right ear. The rating assigned by the AOJ when rating the Veteran's then non-service-connected left ear was Level I hearing acuity. In this case, the Veteran's hearing loss did not meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, these audiometric results discussed above are consistent with a noncompensable disability rating. 38 C.F.R. § 4.85. The examiner assessed the functional impact the Veteran’s hearing loss had on the ordinary conditions of life, including his ability to work. The examiner recorded the Veteran’s report that he has difficulty hearing co-workers, family and friends. See August 4, 2011 Audiological examination, pgs. 1-2. The June 20, 2014 audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 20 15 25 55 75 95 80 42.5 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 15 15 20 25 45 40 45 26.25 Speech audiometry results using the Maryland CNC were 80 percent for the right ear and 92 percent for the left ear. See June 20, 2014 Audiological Examination, pgs. 2-3 The Veteran's hearing impairment was manifested by Level III hearing acuity in the right ear and Level I hearing acuity in the left ear. In this case, neither of the Veteran's ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, these audiometric results discussed above are consistent with a noncompensable disability rating. 38 C.F.R. § 4.85. The VA examiner assessed the functional impact the Veteran’s hearing loss had on the ordinary conditions of life, including his ability to work. The examiner recorded the Veteran’s report he has difficulty hearing and understanding especially if he is in a group or crowd. See June 20, 2014 Audiological Examination, pg. 5. The February 10, 2018 audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 35 40 45 70 85 85 70 60 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 20 25 40 40 50 50 65 39 Speech audiometry results using the Maryland CNC were 90 percent for the right ear and 96 percent for the left ear. See February 10, 2018 Audiological examination, pgs. 1-2. The Veteran's hearing impairment was manifested by Level III hearing acuity in the right ear and Level I hearing acuity in the left ear. In this case, neither of the Veteran's ears meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 (a) or (b) and therefore will be evaluated according to 38 C.F.R. § 4.85. Applying Table VII, DC 6100, these audiometric results discussed above are consistent with a noncompensable disability rating. 38 C.F.R. § 4.85. The VA examiner assessed the functional impact the Veteran’s hearing loss had on the ordinary conditions of life, including his ability to work. The examiner recorded the Veteran’s report he has difficulty with the clarity of words. He may hear a noise but cannot understand what is. The Veteran stated: “I have to turn up the volume of the television.” See February 10, 2018 Audiological examination, pg. 5. The January 4, 2021 audiometric results were as follows: Right Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 50 60 80 95 105 105+ 100+ 85 Left Ear Hertz 500 1000 2000 3000 4000 6000 8000 Ave. Hz. 65 75 80 95 105 105+ 100+ 88.75 Speech audiometry results using the Maryland CNC were 92 percent for the right ear and 88 percent for the left ear. See January 4, 2021 Audiological Examination, pg. 3. As the puretone threshold at each of the four specified frequencies was 55 decibels or more, the Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Using Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination), the results of the January 4, 2021 audiology evaluation equate to a Level III in the right ear and Level IV in the left ear. Using Table VII, those results warrant a 10 percent rating. Using Table VIa, (Numeric Designation of Hearing Impairment Based Only On Puretone Threshold Average) the Veteran audiometric results (85 decibels in the right ear and 89 decibels in the left) equate to a Level VIII in the right ear and a Level VIII in the left ear. Using Table VII, those results warrant a 50 percent rating. Analysis Based on the Veteran's audiological examinations throughout the appeal period, a compensable rating prior to January 4, 2020 is not appropriate. The Board finds that based on the probative evidence of record, the Veteran’s bilateral hearing loss is no worse than level III in the right ear and level I in the left ear prior to January 4, 2020, and no worse than VIII in each ear thereafter. The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the Veteran's bilateral hearing loss disability is more severe for compensation purposes than demonstrated on the audiological evaluations discussed above. The Board observes that each VA examiner recorded the functional impact the Veteran’s hearing loss disability had on the ordinary conditions of his life. The Board is cognizant of the Veteran’s difficulty with hearing and understanding speech, especially when he is in a group or a crowd. The Board is also cognizant that the Veteran’s hearing disability requires him to turn up the volume of his television. The Veteran has also stated that when he uses his phone, he must use the speaker function. See also, December 13, 2016, Board Hearing transcript, pgs. 3-12. While the Board finds his statements to be credible, it finds that those factors do not provide sufficient evidence on which to award a higher rating for his bilateral hearing loss. The Board underscores that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations of level III in the right ear and level I in the left ear (depicted in the June 2014 and February 2018 Audiological examinations) correlate to no greater than a noncompensable rating prior to January 4, 2021. See June 20, 2014 Audiological Examination, pgs. 2-3; See also, February 10, 2018 Audiological Examination, pgs. 1-2. The Veteran's description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination and is contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Veteran's hearing loss does not warrant a higher rating from January 4, 2021. In this regard, the Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. Nevertheless, the most recent test results (corresponding to a numeric value of VIII in each ear) under the applicable criteria still warrant a 50 percent rating. 38 C.F.R. § 4.85, Table VIA. Consequently, an increased rating for bilateral hearing loss from January 4, 2021 is denied. Id. To reiterate, the Board acknowledges the Veteran's functional complaints of difficulty hearing in groups, turning up the volume of his television, using the speaker on his phone. However, when reviewing the assigned disability rating, the Board is bound by the explicit criteria stated in the Rating Code. This criteria measures hearing acuity directly in a controlled laboratory environment. Based on a review of the evidence, there are no probative objective audiometric evaluations to the contrary. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. As referenced earlier in this decision, the Board finds the August 2011, June 2014, February 2018 and January 2021 audiological examinations adequate in assessing the level of severity of this Veteran's bilateral hearing loss disability during the course of this appeal. The application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for this Veteran’s bilateral hearing loss disability warrants a noncompensable rating for the period prior to January 4, 2021, and no more than 50 percent thereafter. 38 C.F.R. § 4.85, Table VIA. Here, the Board finds that the preponderance of evidence is against the finding that a higher rating during any relevant period is warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a TDIU The issue of entitlement to a TDIU is a potential part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, the Veteran stated on his VA 21-8940 form that he had to stop working due to all of his service-connected disabilities. See July 2, 2019 VA Form 21-8940. As referenced in the introduction of this decision, given that there has been evidence of unemployability due to the Veteran's service disabilities, the issue of entitlement to a TDIU has been raised by the record, and as part and parcel of the claim for an increased rating for his bilateral hearing loss. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of 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 (a). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). Service-Connected Disabilities The Veteran is service connected for bilateral hearing loss disability percent from, 0 percent October 11, 2007, 50 percent from January 4, 2021; right shoulder impingement syndrome with degenerative arthritis (limitation of motion of the shoulder), 20 percent from September 9, 2009, 40 percent from February 27, 2018; left knee replacement (previously rated as degenerative joint disease (DJD) of the left knee, limitation of flexion, instability), 10 percent from March 25, 2005, 100 percent from September 20, 2018, 30 percent from November 1, 2019; right total knee replacement, arthroplasty, 50 percent from September 8, 2010, 40 percent from August 15, 2014, 100 percent from January 7, 2021, 30 percent from March 1, 2022; impairment of the scapulohumeral joint (impairment of the humerus), right (major) shoulder, 20 percent from September 9, 2009; left shoulder rotator cuff tear, glenohumeral joint osteoarthritis associated with right shoulder impingement syndrome with degenerative arthritis (limitation of motion of the shoulder), 20 percent from May 8, 2017; tinnitus, 10 percent from October 11, 2007; chondromalacia, right knee (closed), 0 percent from July 10, 1989 to March 25, 2005; left knee limitation of extension associated with left knee replacement (previously rated as degenerative joint disease (DJD) of the left knee, limitation of flexion, instability, 0 percent from January 20, 2014 to September 20, 2018; Degenerative joint disease, right knee (instability), 0 percent from July 10, 1989, 10 percent from March 25, 2005, 20 percent from January 20, 2014, 0 percent from August 9, 2016; left knee with lateral instability associated with left knee replacement (previously rated as degenerative joint disease (DJD) of the left knee, limitation of flexion, instability, 10 percent from January 20, 2014, 0 percent from August 9, 2016 to September 20, 2018; scar, residual of left knee replacement associated with left knee replacement (previously rated as degenerative joint disease (DJD) of the left knee, limitation of flexion, instability, 0 percent from September 9, 20, 2018; scar, right knee associated with right total knee replacement arthroplasty, 0 percent from October 27, 2020. The Veteran has a combined disability rating of 60 percent from September 9, 2009; 80 percent from September 8, 2010; 90 percent January 20, 2014; 80 percent August 9, 2016; 70 percent from August 15, 2016; 80 percent from May 8, 2017; 90 percent from February 27, 2018; 90 percent from November 1, 2019; 100 percent from September 20, 2018; 90 percent from November 1, 2019; 100 percent from January 4, 2021; 100 percent from January 7, 2021; 100 percent from March 1, 2022. See 38 C.F.R. § 4.25 Table I-Combined Ratings Table. Therefore, the Board finds that the threshold requirement for a TDIU is met from September 8, 2010. Discussion For reasons that will be discussed below, with all doubt resolved in favor of the Veteran, the Board finds that the Veteran's disability picture establishes that due to his service-connected disabilities, he is unable to obtain or retain substantially gainful employment for the period from September 8, 2010 (exclusive of any period of a temporary total disability rating). The Veteran indicated on his form VA Form 21-8940 (TDIU application) that he was unable to secure and follow substantially gainful employment as a result of all of his service-connected disabilities. He noted that he last worked in 2010 as a supervisor for USPS and his highest education is a high school diploma. See January 8, 2014 VA Form 21-8940; See also, July 2, 2019 VA Form 21-8940. The Board notes that the Veteran has been afforded multiple VA examinations in connection with his service-connected disabilities. In an October 2010 Contracted VA examination for DJD of the right knee, the examiner reported the Veteran’s limited mobility due to chronic knee pain. The examiner also reported that the Veteran was unable to do household chores, lawn work, climb ladders or painting. The examiner recorded that the Veteran’s DJD of the right knee would prevent him from climbing ladders, walk for long periods of time, bend, stoop or do any household chores that require physical activity. See October 20, 2010 Compensation and Pension examination, pgs. 1-2. At his August 2011 Audiological examination, the examiner reported that the Veteran’s Hearing disability would make it difficult to hear co-workers. See August 4, 2011 Audiological examination, pg. 2. At his January 2014 Knee and lower leg Condition’s examination, the examiner indicated that the Veteran’s knee and lower leg condition limits his walking, standing and climbing. See January 20, 2014 Knee and lower Leg examination, pg. 7; See also March 18, 2016 Knee and Lower leg examination, pg. 11 re: difficulty with climbing, prolonged standing, walking, stooping. At his September 2015 Shoulder and Arm Conditions examination, the examiner indicated that the Veteran’s shoulder condition would make it difficult to lift or reach. See September 12, 2015 Shoulder and Arms Conditions examination, pg. 12. At his March 2018 Shoulder and Arm Conditions examination, the examiner reported that the Veteran’s Shoulder disability would make it difficult to hold and carry objects during flare-ups. See March 19, 2018 Shoulder and Arm Conditions examination, pg. 12. At his May 2018 Knee and Lower Leg examination, the examiner recorded that the Veteran reports difficulty climbing ladders, bending, stooping, going from a seated to standing position and walking for long periods of time. See May 18, 2018 Knee and Lower leg examination, pg. 11. The Veteran has also submitted a January 2020 vocational opinion from a physician as to the impact the Veteran’s service connection conditions has on his ability to work. The Board observes that the physician noted review of the Veteran’s entire claims file. The physician referenced treatment records and VA examinations afforded to the Veteran throughout the period on appeal to support his opinion. See January 17, 2020 Medical Opinion, pgs. 1-4. This review also included a February 2016 Vocational Rehabilitation & Employment Memorandum which found that the achievement of a vocational goal for the Veteran is infeasible at this time. The Board observes that this February 2016 Vocational Rehabilitation Memorandum supported the above finding (after listing the Veteran’s service connected disabilities) based on the Veteran’s report of having difficulty getting up from a sitting position after sitting long periods, difficulty getting into and out of the shower, chronic pain in knees, problems walking long distances, and problems moving from laying down position. See February 25, 2016 Vocational Rehabilitation Employment Memorandum. Returning to the January 2020 vocational opinion: The physician recorded the Veteran’s reasons for his retirement as follows: “The Veteran stated he retired because he could no longer keep up with the job duties and responsibilities assigned to him. His conditions continued to worsen, and it was becoming more difficult for him to walk and stand long periods, lift and carry packages and mail, and concentrating on tasks. The Veteran stated he was also having difficulty due to his hearing loss and tinnitus. The Veteran stated he was also around loud machinery which made it more difficult for him to hear at work and made it difficult for him to work with others. The Veteran stated people would be shouting at him and he could not hear them between the machinery and his hearing loss.” After an analysis of the pertinent evidence of record, the physician provided the following vocational opinion: “Based on my experience, review of the records, and interview with the Veteran, I believe the Veteran, three or more days per month, would be required to have at least one break in addition to the standard 30-minutes lunch and 15-minutes morning and afternoon breaks provided by most employers. Based on the number of good and bad days reported by the Veteran, I feel if he were to try and work full time, he would miss three or more days of work per month or would need to leave early three or more days per month due to his service-connected conditions. The combined effects caused by his service connected conditions impact his ability to stay focused and it is my opinion the Veteran would, more than three days per month, not be able to stay focused to complete simple repetitive type tasks 7 hours of an 8-hour workday. Based on my interview with the Veteran on January 17, 2020, and review of the Veteran’s claims file it is my opinion the Veteran more likely than not is unable to maintain substantially gainful employment due to the combined effects caused by his service connected hearing loss, tinnitus, right knee DJD limited extension, right shoulder impingement syndrome with degenerative arthritis, left knee replacement, impairment of the scapulohumeral joint of right shoulder, left shoulder rotator cuff tear, left knee lateral instability and limitation of extension, DJD right knee, and obesity due to pain and limitations caused by his service connected conditions, including all the construction work and his highest education is a high school diploma.” See January 17, 2020 Medical Opinion, pgs. 1-4. Analysis The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Upon taking into consideration the Veteran's level of education, work experience (physically intensive labor), and the functional impairment resulting from his service-connected disabilities (mainly his knees, shoulder and bilateral hearing loss), to include lay reports, the Board finds that the Veteran was unable to work due to his service-connected disabilities. See also February 26, 2021 Brief in Support of Veteran’s Claim, pgs. 1-2 re: lay reports. The Board credits the VA examinations report as the examiners provided examples of the functional limitations which the Veteran would face in an occupational setting, i.e. difficulty holding and carry objects during flare-ups. See March 19, 2018 Shoulder and Arm Conditions examination, pg. 12; See also May 2018 Knee and Lower Leg examination re: difficulty climbing ladders, bending, stooping, going from a seated to standing position and walking for long periods of time. See May 18, 2018 Knee and Lower leg examination, pg. 11. (Continued on next page.) These VA examinations, in conjunction with the February 2016 Vocational Rehabilitation Memorandum and January 2020 Vocational Opinion provide competent evidence that the Veteran’s limitations make it difficult to point to a field in which the Veteran would not only be qualified, but able to work. The Board observes that these functional imitations have a bearing on both physical and non-physical employment or sedentary employment (e.g., getting up from a sitting position, etc.). See February 25, 2016 Vocational Rehabilitation Employment Memorandum. As the Veteran has indicated that he hast worked in 2010 (USPS), with reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran's disability picture establishes that due to his service-connected disabilities, he is unable to obtain or retain substantially gainful employment for the period from September 8, 2010, exclusive of any period of a temporary total disability rating. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.