Citation Nr: 21026809 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-24 882A DATE: May 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating are satisfied. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The issue of entitlement to a TDIU rating was remanded by the Board in July 2018 and April 2020. The Board finds that there has been substantial compliance with its remand directives, and that no prejudicial error exists in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. The Veteran maintains that he is unemployable, primarily due to his service-connected hearing loss and tinnitus. See July 2011 VA Compensation and Pension Examination Mental Disorders (Except PTSD and Eating Disorders). The Veteran also believes that his adjustment disorder with depressed mood causes unemployability. See March 2018 Hearing Transcript. For the reasons discussed below, the evidence supports a finding that the Veteran's service-connected disabilities produce unemployability for TDIU purposes. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, 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 effect of combinations of disability. Id. In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). As for the "noneconomic component," the Court held that this refers to the individual claimant's "ability to secure or follow" an occupation earning more than marginal income. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the veteran's occupational history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a "checklist that must be completely run through in every case," and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). During the time period under review, the Veteran's adjustment disorder with depressed mood was rated as 70 percent disabling, bilateral mixed hearing loss as 40 percent disabling, and tinnitus as 10 percent disabling. The combined rating from May 23, 2011, forward was 80 percent. Accordingly, the criteria for schedular consideration of a TDIU rating are satisfied. 38 C.F.R. § 4.16(a) The Board finds that the Veteran's ability to secure or follow an occupation earning more than marginal income is limited. The Veteran's claims folder demonstrates that he has primarily been employed in the medical equipment and sales industry. The Veteran's September 2011 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) demonstrates that he reported last working full-time in February 2003 as a technical specialist. He advised in the past 12 months that his total earned income was $7,500.00. His September 2011 VA Form 21-8940 provides that he completed one year of college coursework. Regarding other education or training, the Veteran indicated that he received electronic training during his active service. He also provided that he has not received any education or training since he became too disabled to work. The Veteran's March 2018 VA Form 21-8940 demonstrates that he was employed from January 2017 to March 2017 and his total earned income over the past 12 months was $24,000.00. He indicated that he was not presently employed. The Veteran's July 2020 VA Form 21-8940 indicates that was employed in the medical equipment sector from 1978 to 1998 and from April 2012 to June 2012. He advised that he has not earned an income in the past 12 months and is not presently employed. The evidence shows that while the Veteran has been self-employed during the period under review, this employment has been no more than marginal in nature as the Veteran has not earned a living wage. 38 C.F.R. § 4.16(a). The Board notes that the Veteran's highest gross income was approximately $25,000.00 in the year 2017, and his claims folder does not contain evidence from this year regarding the expenses he incurred from his self-employment. However, the Veteran's tax forms from 2012, 2013, 2014, 2016, 2018, and 2019 consistently demonstrates that his expenses significantly reduce his income to below the poverty line. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that his employment was effectively marginal in nature for the entire appellate period. In sum, the evidence demonstrates that the Veteran has been employed in a single industry at least since 1978. Since 2011, the Veteran's employment has been temporary and sporadic. He does not possess a college degree. Further, he has not received any training or education outside of that he received during his active service. The Veteran's VA treatment records provide information concerning the severity of his service-connected disabilities and their impact on his employment. The Veteran's VA treatment records demonstrate consistent reports of passive suicidal ideation throughout the appellate period. Of note, a February 2011 VA Mental Health Consult provides that the Veteran has thoughts of suicide. He has ringing in his ears that does not allow him to understand conversational speech in-person and over the telephone. He also has difficulty with his job because his hearing loss and tinnitus impair his ability to hear equipment running, which is necessary as he conducts repairs. As a result of the Veteran's impairments, finding full-time work is difficult for him. A May 2018 VA Audiology Note provides that the Veteran has ongoing communication difficulties due to hearing loss and problems sleeping and hearing due to tinnitus. The Veteran's VA treatment records from 2020 show that he reported his tinnitus has become worse over time and that it is currently its most severe. A June 2020 VA Psychology Consult provides that the Veteran reported increasing depressive symptoms, attributed to complications with his tinnitus. The Veteran's VA examination reports also provide evidence concerning the impact of his service-connected disabilities on his employability. Prior to the period on appeal, the Veteran was afforded a VA Compensation and Pension Examination Audio in April 2010. The examination report states that the Veteran's hearing loss and tinnitus have a significant impact on his occupation. In particular, he has difficulty understanding conversational level speech in all listening environments. He also has difficulty hearing necessary electronic sounds, which is problematic because he repairs electronic equipment. Lastly, his communication problems are a source of frustration among his family members. The July 2011 VA Compensation and Pension Examination Mental Disorders (Except PTSD and Eating Disorders) provides that the Veteran states that his hearing impairment has made it difficult for him to do his job. The Veteran feels so exasperated at times that he has thoughts of death and passive suicidal ideation according to the examination report. The Veteran reported experiences fleeting suicidal ideations. The Veteran's tinnitus impacts his ability to use the telephone as he has difficulty understanding conversational speech over the telephone. He has also difficulty hearing the equipment that he is required to repair with his tinnitus and hearing loss. The Veteran's acquired psychiatric disorder impacts his employment as he feels lethargic and is afraid of making a mistake. The examination report provides that the Veteran's mental disorder symptoms are transient or mild and decrease work efficiency and ability to perform occupational tasks. The Veteran advised that he believes the primary reason for current unemployment is his hearing loss and tinnitus. The October 2011 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire indicates that the Veteran reports that he cannot communicate in a workplace environment if there is other activity occurring. His career was in sales and service of medical equipment, and he is unable to repair equipment at this time because he is unable to hear the necessary cues for troubleshooting repairs according to the examination report. The examination report concludes that the Veteran's hearing loss and tinnitus should not be a barrier to success in a wide range of employment settings, but would cause problems and he may have difficulty working successfully in noisy environments and environments where he has to use non face-to-face communication equipment. The October 2011 VA Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire provides that the Veteran's acquired psychiatric disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-case, and conversation. The Veteran has depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, and suicidal ideation. The examination report states that it does not appear that the Veteran's current level of depression and anxiety would prevent him from being successfully employed as these disorders contribute a minimal/mild degree to his impairment, and in particular his reported symptom of fatigue. However, the Veteran may have periods of time in which his mental health symptoms may interfere with his performance on the job. The examination report notes that the Veteran's main complaints regarding employment concern his hearing loss and tinnitus. He has problems communicating in open, public settings and with more than one person. His primary occupation has been servicing medical laboratory equipment, which requires a fair amount of interaction with groups of people and is complicated by his hearing loss and tinnitus. Further, the Veteran is unable to diagnose and fix problems with equipment because of his hearing loss and tinnitus. His tinnitus also causes difficulty with concentration. The September 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire provides that the Veteran's hearing loss causes impairment with conversational speech. His tinnitus, when it is severe, which is frequent, causes the Veteran to focus on the severity of his tinnitus when not engaged in conversation. The April 2019 VA Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire states that the Veteran's acquired psychiatric disorder causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was noted to have symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Regarding functional impairment, the examination report states that the Veteran's acquired psychiatric disorder does not cause impairment with the ability to understand and follow instructions or the ability to retain instructions as well as sustain concentration to perform simple tasks. The Veteran's ability to sustain concentration to task persistence and pace is mildly to moderately impaired. His ability to respond appropriately to coworkers, supervisors, or the general public is considered and his ability to respond appropriately to changes in the work setting are mildly impaired. The Veteran's claims folder contains a September 2012 Psychiatric/Psychological Impairment Questionnaire completed by his treating VA physician. The questionnaire states that the Veteran has memory loss for names, deficiencies in family relations, depression affecting the ability to function independently, appropriately, and effectively, neglect of personal appearance and hygiene, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked irritability, inability to establish and maintain effective relationships, intermittent suicidal ideation, very low energy level, poor motivation to do things, difficulty falling and staying asleep. The September 2012 questionnaire states that the Veteran is mildly limited in the ability to sustain ordinary routine without supervision, ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, ability to respond appropriately to changes in the work setting, ability to travel to unfamiliar places or use public transportation. The Veteran is moderately limited in the ability to remember locations and work-like procedures, ability to maintain attention and concentration for extended periods, ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance, ability to work in coordination with or proximity to others without being distracted by them, ability to accept instructions and respond appropriately to criticism from supervisors. Lastly, the September 2012 questionnaire advises that the Veteran is markedly limited in his ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. The questionnaire further provides that the Veteran's impairments would cause patient to be absent from work more than three times per month. The examiner states that in her opinion, she does not believe that the Veteran is capable of performing full-time competitive work with his psychological symptoms and limitations. The Board finds the September 2012 questionnaire to be especially probative as the opinion represents the informed conclusion of a medical professional, and is based on first-hand knowledge of the Veteran's medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). And although there is no "treating physician rule" requiring the Board to give additional evidentiary weight to the opinion of a physician or other healthcare provider that has treated the Veteran, such a clinician does have an intimate knowledge of the severity of his condition over a span of time and his reported medical history. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). As such, the Board finds that the September 2012 questionnaire outweighs the July 2011, October 2011, and April 2019 examiners' findings that the Veteran's acquired psychiatric disorder does not preclude substantially gainful employment. The Board further recognizes the statements from the Veteran and family members indicating that his symptoms make it difficult for him to sustain meaningful or gainful employment. In particular, during the March 2018 hearing, the Veteran advised that he experiences depression, frustration, fatigue, anger, difficulty maintaining attention and concentration, and has feelings of hopelessness. The Veteran provided that because of his hearing loss and tinnitus, conversations with coworkers often became confrontational because he could not hear what was said. Id. The Veteran also advised that he was perceived as rude by his coworkers because he would not respond during conversations as he could not hear what was being said. See November 2011 Written Statement. In reviewing the evidence, the Veteran's hearing loss and tinnitus renders him unable to perform the physical aspects required by the occupation at issue. His primary occupation has been servicing medical laboratory equipment, which requires a considerable amount of interaction with groups of people. Due to his hearing loss and tinnitus, he has difficulty communicating in open, public settings, with more than one person, and when using the telephone. The Veteran is unable to diagnose and fix problems with equipment because of his hearing loss and tinnitus as he cannot hear the necessary cues for troubleshooting repairs. In all, the Veteran's hearing loss and tinnitus renders him effectively unable to communicate with others during his employment or perform the technical aspect of the lone job that he has held for many years. Lastly, the Veteran does not have the mental ability to perform the activities required by the occupation at issue due to his adjustment disorder with depressed mood, hearing loss, and tinnitus. The September 2012 questionnaire states that the Veteran is markedly limited in his ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods due to his adjustment disorder with depressed mood. The Veteran's disabilities also cause him difficulty concentrating and prevent him from effectively handling workplace stress and cooperating with coworkers. In sum, because the most probative evidence of record demonstrates that the Veteran's service-connected disabilities preclude gainful employment, entitlement to a TDIU rating is warranted. Consequently, the benefit-of-the-doubt rule does not apply, and a TDIU rating is granted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean Mussey, 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.