Citation Nr: 0810387 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-11 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU), to include consideration of whether the claim should be referred to the Director, Compensation and Pension Service for extra-schedular consideration. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from November 1942 until November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to TDIU and increased evaluations for disorder of the right and left foot. Ultimately, the only claim perfected for appeal was the TDIU claim. In November 2007, the veteran and his representative requested that the case be advanced on the docket. In March 2008, the Board granted the veteran's motion to advance this case on the docket based on a finding of good cause. See 38 C.F.R. § 20.900(c) (2007). For reasons which will become apparent below, the issues in appellate status are as characterized above. The TDIU claim being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not meet the schedular requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), as the combined rating of his service-connected disorders is 60 percent. 2. The nature and severity of veteran's service connected disabilities suggest that that he may is unable to obtain or retain gainful employment as a result of those disorders, warranting referral to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b).. CONCLUSIONS OF LAW 1. The schedular requirements for a TDIU rating are not met, and a TDIU rating on a schedular basis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.340, 3.341, 4.16 (a) (2007). 2. The criteria for the referral and submission of the TDIU claim to the Director, Compensation and Pension Service, for consideration on an extra-schedular basis are met. 38 C.F.R. § 4.16(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In the present case, the veteran was provided with the notice required by the VCAA in letters issued in May and July 2005, prior to the adjudication of the claim in October 2005. The RO specifically informed the veteran of the evidence required to substantiate his claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. The veteran was essentially told to submit any evidence in his possession pertaining to his claim. In correspondence dated in May 2007, he was also notified as to how establish disability ratings and effective dates as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds that he was provided with the notice required by the VCAA. Moreover, all available evidence pertaining to the veteran's claim has been obtained. The record before the Board contains VA and private medical records and VA examination reports. In addition, neither the veteran nor his representative has identified any additional pertinent evidence that could be obtained to substantiate his claim. In fact in April 2006, the veteran indicated that he had no other information or evidence to offer to VA to substantiate the claim. Therefore, the Board is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to the claim to the extent necessary to reach the determinations made in this case. The Board notes that, with respect to the Remanded portion of the claim, it is expected that, when the claim is returned to the RO for further development and appellate consideration of the claim, the RO will properly conduct all necessary VCAA notice and development in accordance with its review of the underlying claim. Factual Background The veteran filed TDIU claims in April 2003 and April 2005, indicating that his service-connected hearing loss and foot disorders rendered him unemployable. The veteran indicated that he had a 7th grade education. He reported that he had last worked full time in 1987 doing road maintenance and performing duties as a heavy equipment/dozer operator. On the 2003 application form, it was explained that the veteran could no longer work because he could not hear instructions and could not operate a dozer because his feet were irritated. In a statement provided in 2004, the veteran explained that he had been employed for over 17 years with the county, but that employment was terminated in 1987, with service- connected disabilities playing a role in that termination. It was reported that the veteran was 65 at that time and qualified for Social Security. It was further noted that, after his retirement, he was unable to find gainful employment due to his disabilities. The file contains an April 2005 statement from the county commissioner (retired) of the county district in which the veteran had been an employee. The statement indicated that the veteran had been employed from 1974 through 1987 operating heavy machinery (dozer) and was considered to be a good employee. The commissioner noted that the veteran's hearing continued to decline during his employment and that the veteran's foot symptoms caused problems operating the clutch and mechanics of the dozer. The commissioner noted that both medical problems contributed to the veteran's retirement as he could not hear instructions from supervisors and the feet continued to be painful when the veteran was operating heavy machinery. The record contains an audio evaluation performed by QTC in May 2005. At that time the veteran gave a 20 year history of bilateral hearing loss and tinnitus. Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 Hertz frequencies were 91.25 in the right ear and 91.25 in the left ear. Severe to profound bilateral sensorineural hearing loss was diagnosed with speech recognition of 20 percent in the right ear and 12 percent in the left ear. The examiner also opined that it was at least as likely as not that bilateral tinnitus was etiologically related to noise exposure in the military. Also on file is a private medical evaluation of the feet conducted in June 2005 by Dr. P. The veteran reported having foot trouble since 1942 and indicated that symptoms of weakness and stiffness of the feet occurred with activities such as standing and walking. It was noted that the veteran did not use assistive devices for ambulation. The diagnoses included bilateral weak foot with degenerative changes; bilateral heel spur syndrome and pes planus. A private audio evaluation preformed in September 2005 revealed that average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 Hertz frequencies were 73.75 dB in the right ear and 71.25 dB in the left ear. Speech recognition of 68 percent in the right ear and 84 percent in the left ear. The veteran underwent a VA audiological evaluation in December 2005. Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 Hertz frequencies were 61 dB in the right ear and 78 dB in the left ear. Speech recognition of 52 percent in the right ear and 36 percent in the left ear. The most recent VA audio evaluation on file was conducted by VA in February 2006. Average puretone air conduction thresholds for the 1000, 2000, 3000, and 4000 Hertz frequencies were 64 dB in the right ear and 70 dB in the left ear. Speech recognition was evaluated under several standards and was described as poor bilaterally having been evaluated as 56 percent in the left ear and 64 percent in the right ear. Legal Analysis The veteran contends that his service connected disabilities have rendered him unemployable and requests a total disability rating due to individual unemployability. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2007). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Entitlement to a TDIU under 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more 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. 38 C.F.R. § 4.16(a). The veteran's current service-connected disabilities consist of bilateral hearing loss, evaluated as 40 percent disabling; weak right foot with degenerative changes and pes planus with heel spur syndrome, evaluated as 10 percent disabling; weak left foot with degenerative changes and pes planus with heel spur syndrome, evaluated as 10 percent disabling; and bilateral tinnitus, evaluated as 10 percent disabling. A combined 60 percent disability rating is in effect to include the bilateral factor. Since the veteran's combined disability rating is not 70 percent, (although one of his disabilities, bilateral hearing loss is 40 percent disabling) the service-connected disabilities do not meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) (2007). Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted, and must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). B. Entitlement to a TDIU under 38 C.F.R. § 4.16(b). Because the veteran's combined rating in this case fails to meet the schedular percentage standards of section 4.16(a), his claim for a total rating may be considered only on an extraschedular basis under section 4.16(b). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). Although the Board may not assign an extra-schedular rating in the first instance because the authority for doing so is vested in a particular VA official, the Board may consider whether remand to the RO for referral to those officials is warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that Board is precluded from assigning an extra-schedular rating in the first instance, but the Board is not precluded from considering whether referral to the VA officials is warranted); see also VAOGCPREC 6-96 (Aug. 16, 1996). Therefore, the Board must evaluate whether there are circumstances in the veteran's case, apart from any non- service-connected condition and advancing age, which would justify a total rating based upon individual unemployability, due solely to the veteran's service-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board believes that the extent and nature of the veteran's disabilities in this case, which include evidence of severe bilateral hearing loss and bilateral foot disorders, combined with his education level and occupational experience, suggest that it may be the veteran's service- connected disabilities which render him unemployable. Information of record reflects that the veteran has a 7th grade education and last worked in 1987, having been employed as a heavy equipment/dozer operator from 1974 to 1987. Significantly, the record in this case contains an April 2005 statement from the county commissioner (retired) of the county district in which the veteran had been an employee. The statement indicated that the veteran had been employed from 1974 through 1987 operating heavy machinery (dozer) and was considered to be a good employee. The commissioner noted that the veteran's hearing continued to decline during his employment and that the veteran's foot symptoms caused problems operating the clutch and mechanics of the dozer. The commissioner noted that both medical problems contributed to the veteran's retirement as he could not hear instructions from supervisors and the feet continued to be painful when the veteran was operating heavy machinery. Where there is plausible evidence that a veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, the veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. Based on the evidence above, particularly the April 2005 employer statement, the Board concludes that such referral is warranted. As previously mentioned, the Board will not itself herein make a decision regarding the veteran's claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b), as the Board is not permitted to do so. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should be submitted to the Compensation and Pension Director for extraschedular consideration under § 4.16(b) and to this extent, the appeal is granted. Id. As discussed below, this claim will necessarily be REMANDED to the RO for further action consistent with this decision. ORDER A total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(a) is denied. Referral of a claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service, for extra-schedular consideration, is warranted. REMAND Consistent with the above decision of the Board, it has been determined that the veteran did not meet the threshold schedular requirements for consideration of a TDIU as outlined in 38 C.F.R. § 4.16(a), but that there was sufficient evidence presented to warrant submission of the case to the Director of Compensation and Pension Service, for extraschedular consideration, under the provisions of 38 C.F.R. § 4.16(b), governing cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular requirements. The Board observes that no opinion has been presented or obtained in this case addressing the effect of the veteran's service-connected disabilities on his ability to secure and follow a substantially gainful occupation. Accordingly, a VA opinion "on what effect the appellant's service-connected disabilit[ies] ha[ve] on his ability to work." Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Without such opinion, any previous discussion of whether the claim should be submitted for extraschedular consideration is essentially moot. Once that opinion is of record, referral to the Director of Compensation and Pension Service is ordered in this case, pursuant to this Board decision. Accordingly, the TDIU claim is REMANDED for the following development and consideration: 1. Schedule the veteran for a VA medical examination by an examiner who will render an opinion on what effect the veteran's service-connected disabilities have on his ability to work. In this regard, the examiner should assess the effect that his service-connected disabilities would have on his to secure and follow a substantially gainful occupation. The claims folder must be made available to the examiner in conjunction with the examination and should be reviewed for pertinent medical and other history; in addition a complete copy of this decision and remand should also be made available for the examiner and reviewed. The examiner should opine as to whether, without regard to the veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (a 50 percent probability or higher) that the veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation, that is, on his ability to earn "a living wage". Bowling, 15 Vet. App. at 7; Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 2. After obtaining the aforementioned ordered examination report with opinion, submit the issue of entitlement to a TDIU to the Director of VA's Compensation and Pension Service for consideration of a TDIU on an extraschedular basis. Include a full statement of the veteran's service connected disabilities, employment history, educational and vocational attainment and all other factors having bearing on the issue as required by 38 C.F.R. § 4.16(b). 3. If after review by the Director of Compensation and Pension, the appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs