Citation Nr: 1233814 Decision Date: 09/27/12 Archive Date: 10/09/12 DOCKET NO. 09-43 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to total disability based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse appeared and testified at a personal hearing in July 2011 before the undersigned Veterans Law Judge sitting in St. Petersburg, Florida. A transcript of the hearing is contained in the record. This appeal was previously before the Board in December 2011. The Board remanded the claim so that the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service-connected for bilateral hearing loss, rated as 80 percent disabling throughout the appeal period; and for bilateral tinnitus, rated as 10 percent disabling throughout the appeal period. His combined rating is 80 percent throughout the appeals period. 2. The Veteran meets the schedular requirements for total disability evaluation based on individual unemployability due to service connected disorders; however, the preponderance of the evidence is against finding that he is unable to secure or follow substantially gainful employment as a sole result of service-connected disabilities. CONCLUSION OF LAW The criteria for a total rating for compensation based upon individual unemployability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159 , 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. In October 2008 VA informed the Veteran of the evidence necessary to substantiate the claim of entitlement to a total rating for compensation based upon individual unemployability; what part of that evidence he was to provide, what part of the evidence VA would attempt to obtain, and how disability evaluations and effective dates are assigned. The claim was readjudicated in multiple supplemental statements of the case. Thus, to the extent that any of the notices were missing some information, any error was harmless since the claims were readjudicated after the Veteran received proper notice. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, to include VA medical records, affording VA examinations in connection with his claims, and providing the Veteran with an opportunity to provide testimony before the Board in July 2011. The VA examinations of record are inadequate due to factors that are outside of the control of VA, and the Board will discuss the inadequacy of the examinations in the decision below. The Board finds that remanding for yet another VA examination, when the Veteran has failed to fully cooperate during the three examinations already provided by the VA, would be fruitless. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claims. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Laws and Regulations VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16. The central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's non-service-connected disabilities on his ability to function. Factual Background and Analysis The Veteran is service connected for bilateral hearing loss, rated 80 percent disabling, and tinnitus, rated 10 percent disabling (a combined rating of 80 percent). Accordingly, the schedular criteria for a total disability evaluation based on individual unemployability due to service connected disorders under 38 C.F.R. § 4.16(a) are met. The remaining question before the Board therefore is whether the Veteran is unemployable by reason of his service- connected disabilities alone, taking into consideration his educational and occupational background, such that rating based on individual unemployability may be assigned. The record in this regard reflects that the Veteran has not been employed since 2006. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In his July 2011 VA Form 21-8940, Application for Increased Compensation based on Unemployability, he reported that he last worked full time in 1998 and that he was unable to work subsequently due to his loss of hearing. He reported that he four years of high school. During his July 2011 Board hearing, he testified that he passed his General Educational Development (GED) tests and completed one semester of college. He worked in communications for nearly 30 years, and worked another 10 years as a school bus driver. The Veteran has been provided with three VA examinations to ascertain the severity of his bilateral hearing loss. Notably, none of the examiners were confident in the responses provided by the Veteran. Each examiner found the test results to have fair to poor reliability. In January 2006, the Veteran was afforded a VA audiology examination. The examiner found that the speech recognition tests indicated poor word recognition ability bilaterally. The speech recognition test results were in fair agreement with puretone threshold results; however, puretone threshold results were in poor agreement with observed communication ability. The examiner found that the overall reliability of the testing results was fair to poor and reevaluation with a different examiner was recommended. The Veteran was afforded a second examination in February 2007 before a different VA audiologist. The examiner again found that speech recognition thresholds were only in fair agreement with puretone thresholds. Word recognition abilities were judged to be poor bilaterally, and were significantly worse than the results obtained during the 2006 examination. The examiner found that the overall response reliability was poor. The Veteran was variable in his responses. The examiner noted that while the puretone threshold results were similar to those in the 2006 examination, the Veteran's word recognition results were significantly worse. The examiner found that due to the poor reliability of response/variability of responses, differences noted between the 2007 and 2006 examination results, and only fair agreement between puretone threshold results and speech recognition results, the examiner found that the suitability of the 2007 examination for rating purposes was questionable. As the 2006 and 2007 VA examiners found the examination results to be of a poor quality, in 2011 the Board remanded the claim for an additional examination in 2011. In May 2012, the Veteran was afforded his third VA audiology examination by a third audiologist. Here, the examiner did not even record the puretone threshold or speech recognition scores. She noted: Despite repeated reinstruction and retesting, puretone averages were not in agreement with speech reception thresholds. Responses to both puretone and speech stimuli were very inconsistent. The Veteran exhibited behaviors typical of nonorganic hearing loss, including repeating only half of the spondaic word. His demonstrated communication ability was somewhat inconsistent; however, he did respond to several questions spoken in a normal voice, without looking at the examiner, which was inconsistent with his admitted puretone thresholds. Results indicate a nonorganic hearing loss component, and are not reported. During the examination, the Veteran stated that his hearing loss impacted his daily activities. He reported that he was able to read lips better than he could hear someone speak. He also stated he "had to quit 3 jobs because of [his] hearing." He stated he was not forced to quit, but that he quit of his own accord. He reported he worked as a radio technician and could no longer hear all of the message over the radio. He worked as a school bus driver, but stated he had to leave that job because he could not understand the children (the children were deaf). The examiner stated she could not provide an opinion on the effect of the Veteran's hearing loss on his employability because there was no reliable audiogram in the claims file. She noted that the 2006 and 2007 VA examinations also did not produce reliable audiograms. VA treatment records do not include any additional audiograms. In fact, in February 2009, a VA physician noted the Veteran declined repeated audiologic testing in conjunction with his hearing aids. During his July 2011 Board hearing, the Veteran and his wife testified that his hearing loss negatively affected his activities of daily living. They reported that he did not like to leave the house or interact with people due to his hearing loss. He also reported having radio and television volumes set at uncomfortably loud levels for him to be able to hear them. He stated he retired early from a job in communications, and later worked as a bus driver. He stopped working as a bus driver when he felt he was a safety hazard to the children, even though the Department of Transportation had not forced him to stop working. When asked if he attempted to find work after 2006, he responded that he was in his 60s at that point, and so he did not look for additional work. He reported first starting to use hearing aids 25 years ago, but he reported finding that they did not help him to hear any better due to feedback. He stated that even though he stopped working as a bus driver due to safety concerns that he did continue to drive as long as his wife was in the vehicle with him. When the undersigned Veterans Law Judge asked if the Veteran could work at a desk job, he stated that he could not due to dizziness/balance problems and a "bad back." In September 2012, the Veteran submitted a statement from Denis W. Grillo, D.O. Therein Dr. Grillo observed that the appellant suffered from chronic disequilibrium, eczema, endocrine disorders, a deviated septum, severe edema from smoking, and laryngeal edema related to gastroesophageal reflux disease, a hiatal hernia and years of smoking. All of these disorders, however, are not service connected. With respect to the appellant's hearing loss Dr. Grillo noted that no audiometric studies were available for him to review, however, he suspected that the Veteran's discrimination scores were very poor. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; and, in the case of a hearing loss and tinnitus, that he is competent to testify as to the presence of the disorder. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, 451 f.3d at 1331. (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board finds the Veteran and his wife to be credible in their assertions that the appellant has some level of hearing loss. The Board does not find, however, that the Veteran has been forthright at his VA examinations. Three different VA examiners have noted that the Veteran gives variable responses during testing, and that there is poor reliability in the testing as a result. The 2012 examiner additionally noted that the Veteran demonstrated non-organic hearing loss results, including repeating only half of spondaic words. As the testing results indicate the Veteran is at worst malingering, and at best, not fully cooperating with the examiners, his assertions as to the severity of his hearing loss are not credible. Under the facts presented, the Veteran's failure to fully cooperate in the execution of the requested VA examinations is the functional equivalent of "failing to report" for that examination. The law provides that where a Veteran, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim is to be denied. 38 C.F.R. § 3.655. While VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefit sought, the "duty to assist" is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190-93 (1991). Additionally, the Board notes that the Veteran reported he quit from at least three jobs, without being forced to quit, and that after he quit his last job he did not seek further employment because he had reached retirement age. See July 2011 testimony and January 2009 notice of disagreement. In his claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, he stated that his nonservice-connected diabetes mellitus limited his activities. Based on the aforementioned, and given the Veteran's failure to cooperate in the execution of his scheduled VA examinations, his claim for increased compensation based on individual unemployability must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs