Todd: TDIU and Hearing Loss

Evelyn M. Todd v. Robert A. McDonald, Opinion Number 13-0067, decided September 3, 2014 concerns a Board decision that denied TDIU for bilateral defective hearing.

The veteran had served from 1952 through 1954 and suffered in-service exposure to jet engine noise.  A private audiologist and VA examiner agreed the hearing loss was caused by the in-service exposure and he was granted a 30% rating.  However, he sought a higher rating and TDIU based on the severity of the hearing loss and its impact.  He was later granted an increased rating of 80% but denied TDIU. 

The veteran testified he could not speak on the telephone and he was terminated from a job with an engineering firm because of his hearing loss.  A VA examiner said he was likely limited in his ability to function effectively in an employment setting that required receptive communication skills and includes background noise.  A later VA examiner stated that while employment might be limited, hearing loss alone would not preclude him from gainful employment in a context where interpersonal communication or auditory monitoring is not required.  This later examiner then noted  deaf individuals have rewarding careers in a variety of fields.

The veteran also testified that personnel at the local VA Vocational Rehabilitation and Employment Center said there were no facilities available to train him for work environments that did not require interpersonal communications and auditory skills and there were no potential employers seeking employees without interpersonal communication and auditory skills.

The veteran sought reversal and an award of TDIU because the Board clearly erred.  The Court did not award TDIU because the Board failed to explicitly weigh potentially favorable material evidence.  But, it did remand for consideration of evidence that had been ignored by the Board.  The Court specifically pointed to the veteran’s testimony about the impact of his hearing loss on his ability to function and gain employment, including his inability to use the telephone, limited ability to talk directly to someone, and inability to drive; his testimony that the VA Vocational Rehabilitation Center advised him there were potential employers; and lay statements about his ability to work.  The Court seemed particularly interested in the failure to request records from the VA Vocational Rehabilitation Center.

The veteran also argued that the reference to “deaf individuals” being able to work is a cause for reversal because it considered the average person rather than the individual veteran.  The Court agreed “that whether people with a disability like the veteran’s are usually employable is generally not relevant to TDIU determinations, which are based on an individual’s specific circumstances.  Any reference to whether other individuals, or others as a group, are generally employable despite a particular disability, whether further, careful explanation, may indicate that the Board gave undue consideration to irrelevant and potentially prejudicial information.”   However, the Court found taking the full Board opinion in context, the Board took into account the specific veteran.

The veteran also sought an increased rating under extraschedular considerations and the Court reiterated the issue was so intertwined with the issue of TDIU that it must be remanded.

The decision is important as a further explanation of TDIU and the fact it focuses on the individual veteran rather the average person with that disability.  It also demonstrates a good example of the VA failing in its duty to assist.  because it ensures a veteran has the opportunity to be heard before every Board decision maker and has application to any number of cases that were decided before this opinion.

Written by Judge Bartley and joined in by Chief Judge Kasold and Judge Moorman.