Case 23032225

J. GALLAGHER · 2023 · Case ID: 23032225

MIXED

Summary

The veteran, who served in the U.S. Army from September 1956 to September 1958, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Board previously denied TDIU in January 2021, but the case was remanded by the Court of Appeals for Veterans Claims. The veteran claims unemployability due to service-connected bilateral hearing loss and tinnitus. The Board found that the veteran's combined disabilities, rated at 80% for hearing loss and 10% for tinnitus, met the schedular criteria for TDIU from December 4, 2015. The Board relied heavily on a July 2016 private audiologist opinion and a December 2022 private vocational assessment, both of which concluded the veteran was unemployable due to his hearing impairments and lack of transferable skills. These opinions detailed how the hearing loss and tinnitus significantly impact his ability to communicate and work safely, even in quiet environments, and noted his limited education and vocational experience outside of tree surgery. The Board found these opinions persuasive and, affording the veteran the benefit of the doubt, granted TDIU effective December 4, 2015. The case was remanded for further consideration of an extraschedular TDIU claim prior to December 4, 2015, and to address whether new and material evidence submitted within the appeal period kept the prior rating decision open.

Rationale

Veteran meets schedular criteria for TDIU (80% for hearing loss, 10% for tinnitus).; Private vocational assessment and audiologist opinion found veteran unemployable.; Board afforded veteran benefit of the doubt.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

17-08 226

Full Decision Text

Citation Nr: 23032225
Decision Date: 06/06/23 Archive Date: 06/06/23

DOCKET NO. 17-08 226
DATE: June 6, 2023

ORDER

Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) from December 4, 2015 is granted.

REMANDED

Entitlement to a TDIU on an extraschedular basis prior to December 4, 2015 as part of a pending claim for an increased rating for bilateral hearing loss.

FINDING OF FACT

From December 4, 2015, the Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation.

CONCLUSION OF LAW

From December 4, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active duty service with the United States Army from September 1956 to September 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to TDIU benefits. In April 2018, the Board remanded this case. In January 2021, the Board denied the claim for a TDIU. The Veteran appealed the Board's January 2021 decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a December 2021 order granting joint motion for remand (JMR).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology, or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

The Veteran has asserted that he is unemployable due to his service-connected bilateral hearing loss and tinnitus disabilities. In December 2015, a claim for a higher rating for service-connected bilateral hearing loss was received. A January 2016 rating decision granted an 80 percent increased rating effective December 4, 2015, the date of claim. The claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, a TDIU claim was also presented. In December 2016, a formal TDIU claim was received in which the Veteran reported that he first became disabled in December 2015.

In sum, since December 4, 2015, the Veteran's bilateral hearing loss and tinnitus have been rated 80 and 10 percent disabling, respectively. Therefore, he has met the threshold for a schedular TDIU under 38 C.F.R. § 4.16(a) for this period.

The question before the Board is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required
that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31?Vet. App.?58, 73 (2019). The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Attention should be given to a veteran's history, education, skills, and training; whether a veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether a veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity).

The Veteran contends that his service-connected disabilities render him unable to work. He is currently retired. A review of the record shows that the Veteran submitted a claim for a TDIU in August 2022. See 38 C.F.R. §§ 4.25, 4.26. As the Veteran satisfies the criteria for schedular consideration for a TDIU, the remaining consideration is whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment.

The JMR instructs that, in the January 2021 decision, the Board erred when it failed to substantially comply with its April 2018 remand order. Stegall v. West, 11 Vet. App. 268, 271 (holding that the Board must substantially comply with its prior remand orders). More specifically, VA failed to obtain the Veteran's complete VA treatment records or notify him that it could not obtain VA treatment records from the St. Louis VA Medical Center before September 23, 2009. Following the Board's April 2018 remand, the Regional Office (RO) reported to have obtained all records from St. Louis VA Medical Center dated September 23, 2009, through September 29, 2020. There are, however, no VA treatment records from the St. Louis VA Medical Center dated prior to September 2009 in the record, and the RO failed to notify the Veteran of its inability to obtain VA treatment records from January 2001 to September 2009. Accordingly, the JMR indicated that a remand was required to make adequate efforts to obtain such records. However, in December 2022, the Veteran's attorney indicated that although the attorney submitted a request for the missing records, the attorney was informed that all of the Veteran's treatment records prior to September 2009 are unavailable. The attorney indicated that it was believed that further attempts to obtain these records would be futile. Thus, the Veteran waived any right for VA to make additional efforts to obtain this evidence in compliance with the JMR. The Board may therefore proceed to adjudicate the appeal.

The record reflects that the Veteran completed three years of high school and has not obtained any additional educational or training. He worked as a foreman at a tree company from January 1962 until December 2000. The Veteran reported that he did not lose any time from work or leave his job because of his hearing disabilities.

The Veteran's hearing impairment has significantly worsened since he stopped working in 2000, as reflected by the higher ratings assigned for his hearing loss disability over the years. He also contends that his tinnitus disability has rendered him unemployable, and he has consistently endorsed having constant tinnitus in both ears. He has consistently reported having difficulty understanding during conversations due to his hearing impairment. In January 2016, the Veteran reported that he was hearing well with his newer hearing aids, but that he was still having difficulty understanding. Both audiologists who conducted the January and May 2016 VA examinations indicated that the Veteran's hearing loss would impact his ability to perform ordinary conditions of daily life, including his ability to work, and the May 2016 VA examiner further explained that the Veteran would most likely have difficulty working in an environment with a lot of loud noise.

The Veteran provided a July 2016 medical opinion from a private audiologist who opined that his hearing loss and tinnitus disabilities render him unemployable. In making this determination, the audiologist stated that the Veteran would need to avoid working in any environment where there is any noise, as noise would exacerbate his hearing loss. The audiologist also noted that the limitations caused by his hearing loss would prevent verbal communication face-to-face, as well as by telephone, and that the Veteran's hearing loss would pose a significant safety risk in any job setting involving transportation, driving, or being around machinery. The audiologist concluded that the Veteran's hearing loss would significantly impact his employability in most job assignments with or without adaptation.

In December 2022, a private vocational assessment was performed, and a report prepared. It was the professional opinion of the provider, based on review of the Veteran's medical records and occupational history, that his hearing loss and tinnitus prevent him from participating in significant gainful employment. The provider reviewed the relevant records. In addition, he completed an interview with him in November 2022. The Veteran's wife and son were also present for the vocational interview to assist with answering questions due to the Veteran's hearing difficulty. Also, the provider completed a follow-up call in December 2022 for some additional information. The Veteran and his wife were present for the followup call. The Veteran had difficulty answering the provider's questions due to his hearing difficulty, and heavily relied on his wife and son to repeat questions to him or to provide the answers. The provider approximated that the Veteran heard and answered approximately 10 percent of his questions directly.

Between the Veteran, his wife, and son, they informed the provider that he has constant ringing in his ears and that even when standing next to the Veteran they must shout at him so he can hear. The Veteran's son stated that it can be embarrassing in public as people think that the Veteran is being berated, but it is required in order for the Veteran to be able to hear. His son stated that this is the case even when he is wearing hearing aids. It was also reported that the Veteran has to look at the person speaking and that sometimes he thinks he hears someone speaking to him when there is no one speaking to him. His son stated that hishearing causes distress and frustration and that while he does not dislike groups, he will avoid them as he has difficulty communicating and pinpointing who is speaking. The Veteran stated that at the time of the vocational interview he was not working and that he had not worked since approximately December 2000. As of the December 2022 follow-up call he was still unemployed. He stated that he has some difficulty with taking care of himself. His wife stated that if he stands up too quickly then he must "correct himself' as he feels that he will fall forward. He used glasses and hearing aids as assistive devices.

The Veteran stated that he did not graduate from high school. He stated that he completed most of the 11th grade and denied any additional education. His in-service mechanical duties were reviewed. He stated that he last worked for a tree company. He stated that he would trim trees using hydraulic tools, he was a foreman, and then a general foreman. The Veteran stated that his first job title involved trimming trees using a cherry picker and hydraulic chainsaw. As a foreman he would supervise jobs, report to higher ups about the status of jobs, and fill out paperwork. As a general foreman he would select and run crews, perform administrative work, and document paperwork. His son stated that the Veteran cannot speak any other languages aside from English and that he cannot type. He has no vocational experience using a cash register or multi-line telephone. He does not have a computer and does not use one in any capacity. He cannot use a fax machine, copier, and he has a flip-up cell phone which he uses for calling. He has vocational experience recordkeeping, performing inventory, and supervising others. He has no experience with bookkeeping or office-type filing. He has operated a cherry picker and has used hydraulic tools such as hydraulic chainsaws; he has also operated gasoline powered chainsaws. The Veteran has used hand tools such as hand saws. The Veteran stated that at the time of the vocational interview he had a valid regular driver's license and access to his own vehicle. The Veteran stated that he had a commercial driver's license but was unsure what class it was; he added that he allowed it to expire and his certification to lapse.

The provider stated that the records and interview conducted with the Veteran revealed that his bilateral hearing loss and tinnitus have impacted him negatively both socially and vocationally. The records report that the Veteran's hearing loss and tinnitus cause difficulty hearing, decreased speech discrimination scores, difficulty hearing in a crowded room, and difficulty with everyday conversations. The records also report that when the Veteran wears both of his hearing aids "information" is jumbled and not clear. The Veteran's tinnitus causes irritation when he is reading or watching television, and ringing in his ears. The records also report that the Veteran needs to avoid working in any environment where there is any noise. The Veteran's previous work in tree surgery and supervising workers performing tree surgery is performed in loud environments, and, according to the records, requires the use and supervision of heavy machinery and pneumatic/power tools. The provider stated that the Veteran would be unsuitable for this type of work because of the difficulty hearing and distractions that his hearing loss and tinnitus present would pose serious safety risks in this profession. An employee that is unable to effectively communicate, hear, or is distracted due to ringing in their ears would be a safety risk in this type of employment and other types of employment where communication is necessary.

Regarding alternate employment in very quiet or quiet noise environments such as an office setting, the provider stated that the Veteran's hearing loss and tinnitus can still prove to be a distraction and prevent him from communicating with co-workers, customers, or clients. The records document the Veteran's difficulty with face-to-face communication and communication over the phone and even during the vocational interview, the Veteran could not answer the vast majority of the posed questions and required his wife and son to repeat the question or provide the answer. This would pose a significant barrier to the Veteran working in an office job from a disability standpoint. Further, the suggestion that the Veteran could obtain work in a setting that requires minimal to no verbal communication is unrealistic, as virtually all jobs require some level of verbal communication. Even if he could find such a job, he would be equally unsuitable for positions based solely in written communication, as he cannot type and does not use a computer in any capacity. Notably his previous work consisted of report writing and filling out paperwork but not performing office tasks. Since computer skills are a foundational skill that is required for sedentary work and the majority of light work, the Veteran lacks the skills to be considered proficient for sedentary work. The Veteran has an 11th grade education and worked in the tree surgery business for approximately 38 years. While the Veteran does have experience recordkeeping, performing inventory, and supervising others, this has been in the capacity of performing tree surgery and not in an office environment. The Veteran also does not own a computer and lacks the skills to be considered proficient for sedentary work. Additionally, the Veteran's education is not adequate to rejoin the modern workforce in an office setting especially.
out paperwork but not performing office tasks. Since computer skills are a foundational skill that is required for sedentary work and the majority of light work, the Veteran lacks the skills to be considered proficient for sedentary work. The Veteran has an 11th grade education and worked in the tree surgery business for approximately 38 years. While the Veteran does have experience recordkeeping, performing inventory, and supervising others, this has been in the capacity of performing tree surgery and not in an office environment. The Veteran also does not own a computer and lacks the skills to be considered proficient for sedentary work. Additionally, the Veteran's education is not adequate to rejoin the modern workforce in an office setting especially. It is not realistic to expect a person with an 11th grade education to easily rejoin the workforce. The 11th grade education, lack of computer skills, and lack of work experience outside of working as a tree surgeon would prevent the Veteran from transitioning to other forms of employment such as sedentary or light work. The combination of these ongoing, daily, and situational issues would impede his ability to obtain and maintain any sort of gainful employment in the world of work. It was therefore the provider's professional opinion that the combination of the Veteran's bilateral hearing loss and tinnitus, lack of computer skills, and lack of relevant education have rendered him unemployable.

The Board finds that the evidence is at least in equipoise as to whether the combined effect of the Veteran's audiological limitations prevent employment. The December 2022 private vocational assessment offers a detailed and probative explanation as to why his hearing loss and tinnitus render him unemployable or unable to secure and follow a substantially gainful occupation. His disabilities interfere with his ability to work in a loud environment and otherwise communicate, and his skills and education prevent him from working in an environment where his disabilities would have a lesser impact. There is no medical evidence in the record to contradict the vocational expert's findings. For these reasons, and affording all reasonable doubt to the Veteran, a TDIU from December 4, 2015 is granted.

REASONS FOR REMAND

The Veteran's attorney contends that a TDIU is warranted on an extraschedular basis prior to December 2015, as that matter was on appeal in conjunction with a pending claim for an increased rating for hearing loss. The attorney argues that the claim has been pending since September 28. 2009 because "new and material" evidence was constructively associated with the Veteran's file within a year of an October 29, 2012 VA rating decision which granted service connection for bilateral hearing loss (and assigned a 10 percent rating for this disability) as of September 28, 2009. The attorney argues that once it is determined that evidence has been associated with the claims folder within a year of a VA decision (as occurred in this case), under 38 C.F.R. § 3.156(b) the claim adjudicated in that decision remains open (even if future decisions adjudicate that same claim) until VA issues a decision which is "directly responsive" to the new evidence. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The attorney indicated that although VA has adjudicated the issue of the rating warranted for bilateral hearing loss multiple times since October 2012, none of those decisions directly addressed the materiality of the evidence submitted within a year of that decision. Thus, it is argued that the issue adjudicated in VA's October 2012 decision remains open. It was indicated that under Lang v. Wilkie, VA treatment records are "always reasonably related to a veteran's claim." See Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020) (emphasis added). It is maintained that in the record "new and material evidence" (in the form of VA treatment records regarding his hearing loss) was generated within a year of VA's October 2012 decision. The issue of the materiality of these treatment records has never been directly addressed by VA. Thus, it is asserted that the issue of the rating warranted for bilateral hearing loss as of September 28, 2009 (and entitlement to TDIU) therefore remains open.

It was also argued by the attorney that although this case has not yet been referred to the Director of Compensation Service for extraschedular consideration, the record contains evidence showing the Veteran's bilateral hearing loss has prevented him from working since September 28, 2009. It was therefore requested that a "total" rating (under 38 C.F.R. § 3.321(b) or
generated within a year of VA's October 2012 decision. The issue of the materiality of these treatment records has never been directly addressed by VA. Thus, it is asserted that the issue of the rating warranted for bilateral hearing loss as of September 28, 2009 (and entitlement to TDIU) therefore remains open.

The matter is REMANDED for the following action:

1. Consider whether the matter of a higher rating for hearing loss remained pending following the October 29, 2012 VA rating decision, taking into consideration any evidence submitted within one year of that decision.

2. Refer the matter of entitlement to a TDIU on an extraschedular basis prior to December 4, 2015 to the Under Secretary for Benefits or the Director of Compensation and Pension Services.

3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board.

J. GALLAGHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Connolly

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.

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