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Court Wins

CCK Helps Vietnam Veteran Win TDIU for Bilateral Hearing Loss

Alyse Phillips

September 28, 2021

Updated: February 16, 2024


Case Summary

The Veteran served in the United States Army during the Vietnam era from December 1967 to November 1969.  In 2005, he filed a claim for U.S. Department of Veterans Affairs (VA) disability benefits for bilateral hearing loss connected to his service.

VA initially granted the Veteran monthly compensation for his hearing loss at a 10 percent rating in 2005.  As his condition worsened, VA gradually increased the rating, and by 2013, he was receiving disability benefits at a 40 percent level.

On January 30, 2015, the Veteran filed for Total Disability based on Individual Unemployability (TDIU), which provides monthly compensation equal to a 100 percent rating, as well as for tinnitus secondary to his hearing condition and an increased rating for his bilateral hearing loss.  Following a Compensation and Pension (C&P) exam on April 15, 2015, VA granted the Veteran an additional 10 percent for tinnitus, but denied his requests for TDIU and a rating increase.

The Veteran decided to file a Notice of Disagreement with the Board of Veterans’ Appeals (Board) in hopes of securing a better rating for his condition.  On August 23, 2018, the Board reviewed the case and denied the Veteran TDIU benefits on a schedular basis; however, they remanded the case for extraschedular consideration.

The Veteran attended another C&P exam on September 26, 2018.  Based on the results, VA proposed a rating reduction from 40 to 30 percent for his bilateral hearing loss in June 2019.

CCK Argues for Extraschedular TDIU for Veteran’s Hearing Loss

The case came before the Board again on February 11, 2020.  Chisholm Chisholm & Kilpatrick LTD asserted the Veteran should be granted extraschedular TDIU benefits for a few key reasons.

The Veteran worked as a self-employed dental technician because his severe bilateral hearing loss made it difficult for him to interact with coworkers.  Since his career sheltered him from normal coworker interaction associated with ordinary employment, CCK argued that the Veteran’s situation should be considered a protected work environment.  Additionally, the Veteran earned significantly less than half of what the average dental technician makes, putting him below the federal poverty threshold.

An individual unemployability assessment from a vocational consultant stated that the Veteran was “totally unemployable in that he is unable to secure and follow a substantially gainful occupation.”  Considering these arguments, the Board remanded the case for additional development by VA.

VA Grants Extraschedular TDIU

On February 9, 2021, VA granted the Veteran individual unemployability on an extraschedular basis, effective January 20, 2015.  The Veteran now receives VA monthly benefits equal to a 100 percent rate for his service-connected bilateral hearing loss.

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse