Citation Nr: 0121529 Decision Date: 08/24/01 Archive Date: 08/29/01 DOCKET NO. 96-13 378 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to a total disability compensation rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD K. Osborne, Counsel INTRODUCTION The veteran had active military service from January 1950 to December 1963. He also had 10 years and 1 day of service prior to January 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the RO which denied a TDIU rating. In January 1998, the veteran stated that his appeal was for an increased evaluation for hearing loss rather than for a TDIU rating. Based on this statement, in a November 1999 decision, the Board determined that the veteran withdrew his claim for a TDIU rating. The veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2000 joint motion to the Court, the parties (the veteran and the VA Secretary) requested that the November 1999 Board decision be partially vacated and the matter remanded. The parties' basis for the remand involved the part of the Board's November 1999 decision which found that the veteran had withdrawn his claim for a TDIU rating. By a January 2001 order, the Court granted the joint motion. Thus, the issue now before the Board is whether the veteran is entitled to a TDIU rating. FINDING OF FACT The veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment, considering the impairment from the disorders and his educational and occupational background. CONCLUSION OF LAW The requirements for a TDIU rating have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that all required notice and development action specified by the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (2000) (hereinafter, "VCAA"), have been complied with the during the pendency of this appeal. In this regard, by virtue of the rating decision, statement of the case, and the RO personal hearing, the veteran and representative were given notice of the information and evidence necessary to substantiate his claim. Moreover, the RO has made reasonable efforts to obtain all relevant records. Specifically, the information and evidence that have been associated with the claims file consist of the veteran's service medical records, postservice medical records, including private and VA examination and outpatient treatment reports and assertions made by the veteran and his representative in support of his claim. The Board further observes that in the December 2000 joint motion, it was noted that the veteran could submit evidence regarding this issue, and the veteran, by and through his representative, has submitted additional information and private medical evidence in support of his claim. In March 2001, the Board informed the veteran's representative of their right to submit additional argument and evidence with respect to the claim. Thus, the Board is unaware of any additional pertinent evidence, which is available in connection with this appeal. Therefore, under the circumstances of this case, the VA has satisfied its duties to notify and assist the veteran in this case. Accordingly, further development and further expending of VA's resources is not warranted. VCAA, § 3 (to be codified as amended at 5103, 5103A). I. Factual Background The veteran had active military service from January 1950 to December 1963. He also had 10 years and 1 day of service prior to January 1950. His service medical records show that he had hearing loss. The veteran's DD Form 214 shows that he was born in November 1915. In November 1970, the veteran filed a claim of service connection for hearing loss. A January 1971 VA examination report reveals he was diagnosed as having partial bilateral deafness. During the examination, the veteran reported working from 1964 to 1970. He stated his past work experience involved wiring trucks, installing electric meters and working with electronics. The RO, in March 1971, granted service connection for bilateral partial deafness and assigned a noncompensable rating, effective from November 1970. During a September 1979 VA audiological examination, the veteran stated that he retired on Social Security disability benefits in November 1977. He reported he missed time from work due to osteoarthritis affecting the cervical spine, elbow, and fingers. Physical examination revealed the veteran continued to have hearing loss. The veteran underwent another VA audiological examination in June 1980. Based on the 1979 and 1980 examinations, the RO, in September 1980, granted an increased rating to 40 percent for partial bilateral deafness. The rating was made effective from April 1979. In July 1988, the RO increased the rating for partial bilateral deafness to 50 percent, effective from December 1987. In February 1995, the RO increased the rating for hearing loss to 70 percent, effective from September 1994. In March 1995, the veteran inquired about filing a claim for a TDIU rating and requested that the appropriate form be sent to him. The veteran stated that during the last few years before he started to receive Social Security benefits, he noticed that prospective employers spotted his hearing aid. He stated that it was then that they lost all interest in him. He related that he believed age was another factor in him not being hired by potential employers. He claimed he also failed to receive employment opportunities due to being over qualified. In June 1995, the veteran filed a formal claim for a TDIU rating. The veteran stated that his impaired hearing prevented him from securing or following a substantially gainful occupation. He stated that in January 1975 his hearing impairment affected full-time employment and that he last worked full-time in January 1975. He reported that prospective employers deemed him totally disabled. He stated he made the most money in 1974 while working as an electronic technician. He reported that he worked in electronics from 1967 to 1975. He reportedly worked for the same company for 2 to 3 years before moving to another company. He stated that he first began having trouble with his hearing in early 1975. He reported that he did not leave his last job as a result of service-connected disability. He related that after becoming too disabled to work, he worked part-time at several "menial" jobs. He stated that over the years he had had several odd jobs as a maintenance man and that he had also delivered newspapers. He reported that in June 1977, he began receiving state disability benefits and that in November 1977, he applied for Social Security disability benefits upon turning 62. He stated that upon reaching 65, he received regular Social Security benefits. He reported that he completed 2 years of college. He stated that he had taken correspondence courses in television and for a FCC radio/telephone operator license. He stated that he received the license in November 1970 and renewed it five years later in 1975. He reported that he wore hearing aids. He stated that it became very obvious to him that no amount of education and/or training would offset the stigma of his advancing age and his use of hearing aids. He stated that considering his impaired hearing and his advancing age, he felt that in the eyes of all prospective employers, he was viewed as totally disabled. He stated that there was countless other excuses given to him for not getting the position, such as being over qualified. On the application, the veteran certified that the statements made on the application were true and complete to the best of his knowledge and belief. The veteran testified at a July 1995 RO hearing pertaining to the issue of an increased rating for bilateral hearing loss. At that time, he reported that when he was trying to find work, prospective employers lost interest once they saw that he wore a hearing aid. He stated he was only able to obtain "menial" jobs. He described his "menial jobs" as working as a maintenance man at a motel and working as a mail delivery person. He indicated that these positions did not pay well. In August 1995, the RO denied the veteran's claim for a TDIU rating. The veteran submitted a letter dated in August 1995, which the RO considered to be a notice of disagreement. In this letter he stated that he was terminated from his job in January 1975 with an electronic company due to arthritis. He stated he was losing too much time from work due to doctor visits. He reported that at that time he also had high blood pressure and vertigo at times. He stated that it was these other ailments that made finding and holding a decent paying job more difficult. The RO again denied the claim for a TDIU rating in September 1995. A statement dated in September 1995 from the veteran indicates that he acquired a FCC license to demonstrate his knowledge of electronics. He stated that he never worked as a radio or telephone operator. He asserted that when interviewing for a position while wearing hearing aids, he had three strikes against him. He stated that the potential employer believed he would not be able to understand verbal instructions. In an October 1995 statement, the veteran stated that he never worked at a job which required a FCC license. He reported that his hearing impairment would prevent such. He stated that he was dismissed form a job in January 1975 due arthritis of the shoulders. He stated that he thought his hearing loss also affected his ability to perform his job. He stated that upon wearing hearing aids, he was only able to obtain "menial" type of jobs. He claimed that employers had used age as a factor in not hiring him and that he was also told that he was over qualified, which he claimed was a favorite excuse of potential employers. In an October 1995 statement the veteran noted that he was able to drive safely to his July 1995 RO hearing. He stated that he remained more alert than most people with normal hearing. The veteran, in a statement received by the RO in December 1995, stated that his hearing disability made it virtually impossible to gain any employment. He stated that the interviewer never noticed that he had no trouble hearing and understanding their questions. He stated that all they ever noticed was that he was wearing hearing aids. He stated that they also noticed his age. He stated that in 1975, when he first began wearing hearing aids, it became increasingly difficult to get decent paying jobs and that he had to settle for "menial" jobs. In March 1996, the veteran stated that employers would not hire him due to his advancing age and due to the fact that he wore a hearing aid. An April 1997 VA ear examination revealed a diagnosis of tinnitus. The RO, in June 1997, granted service connection for tinnitus and assigned a 10 percent rating, effective from April 1996. In January 1998, the veteran stated that his appeal was for an increased evaluation for hearing loss rather than for a TDIU rating. He stated that it had been over 20 years since he was in the labor market and that he was currently 82 years old. He stated that from November 1977 to November 1980 he was in receipt of Social Security disability benefits due to osteoarthritis affecting the cervical spine, elbow, and fingers. He stated that he also received Social Security benefits due to vertigo. The veteran stated that his age was as much of a disability as his impaired hearing. He stated that that was true when he was trying to find a job over twenty years ago at the age of 60. The veteran stated that he had borderline diabetes and that he had had a quadruple heart bypass operation. He stated that he was also treated for his peptic ulcer and cataracts. In September 1999, the veteran reported that his hearing loss had prevented him from getting a decent paying job while he was still in the job market over 20 years ago. He stated that he would turn 84 in November. In December 2000, Craig N. Bash, M.D., a neuro-radiologist, submitted a report to the veteran's attorney. In this report, Dr. Bash mistakenly reports that the veteran entered service in November 1948 and that he was discharged in September 1963. He tells the attorney that he reviewed a certified copy of the veteran's records for the purpose of rendering a medical opinion about the veteran's hearing problems and his ability to be employed. He stated that he reviewed postservice medical records, rating decisions, supplemental statements of the case, the veteran's testimony, the veteran's letters, and medical literature. He stated that he also had a telephone interview with the veteran's wife concerning the veteran's work history. Based on the foregoing, Dr. Bash stated that it was his opinion that the veteran was unable to obtain or retain work due to his hearing disability ever since his discharge from service in 1963. In rendering his opinion, Dr. Bash noted the veteran's July 1995 hearing testimony and his assertions to the effect that he had hearing loss and tinnitus and that his hearing loss prevented him from getting a decent paying job. Dr. Bash also referenced 1997 medical reports showing that the veteran had hearing loss and tinnitus. Dr. Bash stated that it was clear from the above medical record that the veteran had severe hearing loss which was caused by noise exposure in service. Dr. Bash stated that according to the veteran's testimony and work record, he had been unable to obtain or retain any jobs. Dr. Bash noted that the veteran's employment following his retirement from service was very sporadic and inconsistent as he was employed by 4 employers over a 6 to 8 year span. He stated that it was his opinion that the veteran's hearing loss made it impossible for him to obtain or retain employment since he left service in 1963. II. Analysis Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Consideration is given to such factors as the extent of the service-connected disability, and employment and educational background, and it must be shown that the service-connected disability produces unemployability without regard to intercurrent disability or advancing age. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. The veteran is service connected for hearing loss (rated 70 percent) and for tinnitus (rated 10 percent). The combined rating, under the combined ratings table of 38 C.F.R. § 4.25 is 70 percent. Therefore, the veteran meets the percentage requirements of 38 C.F.R. § 4.16(a), for consideration for a total unemployability rating on a schedular basis, and the determinative issue becomes whether he is unemployable due to service-connected disabilities. In determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet.App. 361 (1993). In other words, according to pertinent regulation, "unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating." 38 C.F.R. § 4.19 (emphasis added). For a veteran to prevail on claim based on unemployability, it is necessary that the record reflect some factor, which places his case in a different category than other veterans with equal ratings of disability. Id. Furthermore, the fact that a veteran 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, supra. The record shows that the veteran retired from active military service after approximately 25 years. The record also shows that the veteran has completed 2 years of college. Following service, he acquired a FCC license. He last worked full-time in January 1975, although later reports indicate he worked "menial" part-time positions after 1975. His postservice work experience included wiring trucks and installing electric meters. The majority of his work experience was as an electronic technician. After 1975, he reportedly worked as a maintenance man and as a delivery person. He related that he did not leave his last full-time position in January 1975 due to service-connected disability. In August 1995, he stated he was terminated from his job in January 1975 due to having arthritis. He stated that his arthritis caused him to miss a substantial amount of time from work due to doctor visits. He related that at that time he also had high blood pressure and vertigo. The Board observes that the veteran reports being in receipt of Social Security disability benefits beginning in 1977 due to vertigo and due to osteoarthritis which affected the cervical spine, elbow and fingers. He does not contend that hearing loss and tinnitus were a consideration in his receipt of Social Security disability benefits. The veteran asserts that when he sought employment 20 years ago, he was unable to obtain employment. He claimed that employers would not hire him due to his use of hearing aids. It was his belief that these employers viewed him as totally disabled. There is no evidence of record showing that the veteran was denied any position due to the fact that he wore hearing aids. The fact that a veteran wears hearing aids, in and of itself, has no bearing on his or her ability to adequately apply for and obtain numerous positions, including positions in electronics, maintenance, etc. Numerous individuals, including veterans, who wear hearing aids are able to obtain and retain gainful employment. The Board notes that the veteran is over 85 years of age. Throughout the appeal, he has argued that his age has prevented him from being able to obtain substantial gainful employment. As noted previously, "unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating." See 38 C.F.R. § 4.19. The Board finds it noteworthy that the veteran has not attempted to obtain employment within the last 20 years, and it appears that his primary reason for not doing so is his age. The veteran claims that he failed to obtain jobs applied for due to being over-qualified for the position. However, the Board notes that the criteria is whether he is capable of performing physical and mental acts required by employment, not whether he can find someone to employ him. Van Hoose, supra. Since September 1994, the veteran's hearing loss has been rated 70 percent. The record shows that the veteran uses hearing aids and he reported in December 1995 that he had no trouble hearing and understanding during a job interview. The veteran's statement tends to support a finding that his service-connected hearing loss does not prevent him from obtaining. In support of his claim, the veteran submitted a December 2000 opinion by Dr. Bash. Dr. Bash opined that the veteran was unable to obtain or retain work due to his hearing disability ever since his discharge from service in 1963. The Board accords no probative value to Dr. Bash's opinion, as such opinion is not supported by the evidence of record. Although Dr. Bash gives the impression that he has reviewed the veteran's medical and occupational history as found in the claims file, it is obvious that any review conducted by Dr. Bash was not complete or that he simply ignored key evidence. In this regard, the record clearly shows that the veteran has held numerous positions following his discharge from service. The claims file also shows that the veteran was discharged from service in 1963 and that he worked full- time until 1975. The claims file further shows that he was able to maintain the same positions for years at a time. When he stopped working full-time in 1975, it was not due to his service-connected hearing loss and tinnitus, but was due to his nonservice-connected arthritis affecting his cervical spine, elbow and fingers. Moreover, the veteran has stated that he had no problems hearing or understanding questions during his employment interviews. Dr. Bash made no mention of this fact, as such fact would tend to show that the veteran's hearing loss would not prevent him from obtaining employment. Dr. Bash's opinion appears to be based primarily on the veteran's contention that he could not obtain employment due to his service-connected hearing loss. It is well established that medical evidence is inadequate where medical opinions are general conclusions based on history furnished by the veteran and are unsupported by clinical evidence. See Reonal v. Brown, 5 Vet. App. 458 (1993); Black v. Brown, 5 Vet. App. 177 (1993) Despite some limitations imposed by service-connected disabilities (hearing loss and tinnitus), the veteran is fully cable of performing the physical and mental acts required for gainful employment, including his past positions in electronics and maintenance. His completed years of college, and years of employment in a variety of areas provide ample experience, which could be used in a number of positions. There is no probative evidence showing that the veteran is unable to work now, due to his service-connected hearing loss or tinnitus. The record shows that the veteran is over 85 years old and has numerous nonservice-connected disabilities which may have an impact on his ability to work. Under the circumstances of the instant case, there is nothing in the record, which takes the veteran's case outside of the norm of similarly situated veterans with a similar disability rating. VanHoose, supra. The Board concludes that the weight of the evidence establishes that the veteran's service-connected disabilities alone do not prevent him from securing or following a substantially gainful occupation, and he does not meet the criteria for a TDIU rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a TDIU rating must be denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim for a TDIU rating is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals