Citation Nr: 1003345 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-39 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to total disability based on individual unemployability. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Representative only on behalf of the Veteran ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1944 to November 1946. This appeal comes before the Board of Veterans' Appeals (Board) from March 2007 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board sitting at the RO. A hearing was scheduled in November 2009, but the Veteran was unable to appear as a result of age and service- connected disabilities. As good cause was shown, the undersigned Veterans Law Judge granted a request and received argument from the representative on the Veteran's behalf. 38 C.F.R. § 20.700 (2009). A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has the following service connected disabilities: anxiety, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 10 percent disabling. All service- connected disabilities arise from combat action. 2. The Veteran has a high school education and skills in machinery repair. 3. The Veteran experiences mild symptoms of anxiety related to wartime experiences and concerns regarding his physical health. The symptoms include social isolation, intrusive thoughts, interrupted sleep, nightmares, startle reaction, and hypervigilance. There is no evidence of suicidal ideations, persistent panic attacks, or disruptive behavior. There are no communication or thought process deficits. 4. The Veteran experiences a complete loss of hearing in the left ear, mild to moderate sensorineural hearing loss in the right ear, and constant tinnitus. The Veteran has difficulty hearing conversations especially in high background noise but achieves some improvement with a functional hearing aid. 5. The Veteran is not precluded from all forms of substantially gainful employment as a result of his service- connected disabilities. CONCLUSION OF LAW The criteria for total disability based on individual unemployability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and; (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A claim for total disability based on individual unemployability is considered a claim for an increased rating for the combined effects of service-connected disabilities. For an increased-compensation claim, VA must notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). In response to the Veteran's August 2006 claim for increased ratings for all service connected disabilities and for TDIU, the RO provided a notice in October 2006 that met the requirements. The notice provided the statutory and evidentiary criteria to substantiate a claim for TDIU, the types of evidence that would be considered, and the Veteran's and VA's respective responsibilities to obtain that evidence. In March 2007 and November 2007, the RO denied increased ratings and TDIU. In January 2008, the Veteran expressed disagreement only with the decision to deny TDIU. In this case, increased ratings for individual service-connected disabilities are not on appeal. Therefore, the Board concludes that adequate notice was provided relevant to the issue on appeal. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. In August 2001, the National Personnel Records Center reported that the Veteran's service records were partially lost or damaged in a fire. However, records of induction and discharge physical examinations have been recovered. The Social Security Administration granted disability benefits starting in 1987. In October 2006, an SSA representative reported that the associated adjudication and medical records could not be located. The Veteran was notified in formal written administrative findings. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served as a U.S. Army rifleman and military policeman including combat duty in the Asia-Pacific Theater of Operations. The Veteran was awarded the Combat Infantryman's Badge. He contends that he is unable to sustain substantially gainful employment because of his service connected disabilities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to establish entitlement to TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of this analysis, multiple injuries incurred in action will be considered a single disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran has the following service connected disabilities: anxiety, rated as 50 percent disabling; bilateral hearing loss, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. As service connection for all disabilities arose from acoustic trauma and combat experiences, the Board concludes that the three disabilities are a single disability of 60 percent because they were incurred in combat action. Therefore, the Board concludes that the statutory requirements for TDIU are met. The medical records show that the Veteran also has the following non-service connected disorders: residuals of bilateral foot injuries including flat feet with broken arches, Meniere's disease, several cardiovascular disorders including heart disease and hypertension, asbestos-related pulmonary disease, and residuals of a cerebrovascular accident and head trauma. In November 2004, a VA mental health examiner noted the record and reports by the Veteran of his combat experiences. The Veteran reported that he had been married since 1947 with three children who lived nearby. The Veteran retired from his occupation in 1987 after developing a pulmonary disorder related to asbestos. The Veteran had also received seven stents associated with heart disease and treatment for blood clots of the legs. The Veteran had participated in a short program of PTSD group sessions but was not receiving any regular mental health treatment or counseling. The Veteran had been very involved in social organizations but abandoned the activity because of decreasing stamina and discomfort being in crowds. The Veteran did experience sleep disturbance with nightmares and intrusive thoughts and an anxious mood when recalling the details of combat. He slept apart from his spouse to avoid disturbing her. However, the examiner noted that the Veteran maintained a close and very positive relationship with this spouse, children, and grandchildren. The examiner noted no psychotic thought process, perceptual disturbance, or suicide ideation. There were no deficits in cognitive function or memory. The examiner diagnosed anxiety disorder and assigned a Global Assessment of Functioning (GAF) score of 68, indicating mild symptoms. The same month, a VA examiner performed an ear examination, noting that the Veteran had undergone surgery in the left ear for Meniere's disease. The surgery was partially successful but did not completely prevent occasional symptoms of imbalance and vertigo. The record also contained a VA audiometric examination in February 2003 that showed a total loss of hearing in the left ear and a slight high frequency sensorineural loss in the right ear. The examiner also noted the Veteran's reports of constant tinnitus perceived in the left ear and intermittently in the right ear. The examiner noted the Veteran's reports of experiencing progressive hearing loss and tinnitus since the 1940s. In a February 2005 RO hearing, the Veteran stated that he continued to experience interrupted sleep, intrusive thoughts, startle reaction, and avoidance of news concerning current military conflicts. He stated that he slept separately from his spouse because of his nighttime restlessness. The Veteran was able to perform household and shopping tasks but experienced anxiety and panic attacks once or twice per month. The Veteran stated that he continued to maintain strong family relationships but had given up many favorite recreational activities because of a loss of enjoyment and the effects of physical disorders. In an August 2005 letter, the Veteran's daughter, writing on behalf of the Veteran's spouse and children, noted that the Veteran's health was deteriorating. The family members observed symptoms of insomnia, nightmares, night sweats, hypervigilant behavior, avoidance of news of war, social isolation, and alienation of family affection. The daughter described the Veteran as restless and overwhelmed with simple daily activities. In December 2005, the RO granted an increased rating for anxiety of 50 percent, effective in June 2002. The Veteran continued to be rated as 10 percent disabled for tinnitus and 10 percent for bilateral hearing loss. In an April 2007 application for TDIU, the Veteran reported that he had a high school education and worked as a maintenance and machinery repair technician at an industrial business for over 39 years. He indicated that he left work in 1987 because of an unspecified disability. Electronic records showed that SSA granted disability benefits effective in November 1987, but the records did not show the nature of the disability. In September 2007, a VA psychologist noted a review of the claims file including the results of the mental health examination in November 2004. The psychologist noted that the Veteran experienced several physical disorders including hyperlipidemia, diabetes, chronic obstructive pulmonary disease, hypertension, cerebrovascular accident, and heart disease. The psychologist noted the Veteran's report that he was unable to work because of physical disorders of the legs, difficulty breathing, and memory deficits but not because of mental health. The Veteran reported no mental health treatment or medication but continued to have symptoms of sleep interruption, intrusive thoughts, flashbacks, startle reaction, and worries about his health. However, he denied obsessive behavior, impaired impulse control, panic attacks, and suicidal ideation. The Veteran reported strong family relationships and the ability to accomplish daily activities of a retiree in and outside the home. However, the Veteran reported spending much time at home in a room separate from his spouse. The psychologist noted that the Veteran displayed some symptoms of PTSD but not enough to warrant a diagnosis. The psychologist diagnosed an anxiety disorder and assigned a GAF of 65, indicating mild symptoms. The psychologist noted that the symptoms caused a decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran acknowledged to the examiner that if he were physically able to work, the anxiety would not be an employment obstacle. The psychologist concluded that the Veteran's ability to concentrate and follow instructions may be affected by the intrusive thoughts and also by the effects of aging. The same month, a VA audiologist noted that the Veteran was having increasing difficulty hearing conversations in high background noise. Audiometric tests showed a complete loss of hearing in the left ear and mild to moderate sensorineural loss in the right ear. The audiologist noted that the hearing loss would not prevent the performance of manual labor or jobs where minimum communication was required. Outpatient VA treatment records showed that the Veteran was issued hearing aids which required periodic adjustment, cleaning, and repair. After each encounter, the Veteran reported improved hearing aid performance. In February 2009, a VA psychologist noted a review of the claims file and summarized the Veteran's service, medical, occupational, and social history including the service and nonservice-connected disorders. The psychologist noted that the Veteran continued to receive strong family support but that his spouse was disabled, that he used a walker for mobility, and that he was unable to prepare meals or operate an automobile except on an infrequent basis. The Veteran experienced sleep disruption, intrusive thoughts, hypervigilance, startle reaction, and anxiety regarding his health. The psychologist noted that the Veteran had a long history of social isolation except for family relationships and limited activities at a senior center, primarily for meals. There was no evidence of psychotic thought process or perceptual disturbance. The Veteran experienced some distant memory loss but was able to generally keep track of things on a daily basis. The psychologist noted that anxiety was not a cause for the Veteran's retirement and that the Veteran reported that he would be willing to join the Army now if it were not for his age and physical health. The psychologist diagnosed generalized anxiety disorder and assigned a GAF of 61, indicating mild symptoms. The psychologist noted that independent of age and health, the anxiety disorder alone was unlikely to have any significant impact of employability, productivity, reliability, or relationships with coworkers. The impact of the anxiety disorder was limited and mild, was manifested by a desire to have limited social contacts, and was productive of occasional distracting thoughts of wartime experiences. The same month, a VA audiologist performed a hearing assessment with test results unchanged since September 2007. The audiologist noted the Veteran's reports of total left ear hearing loss, constant bilateral tinnitus, and occasional imbalance and falls. The audiologist noted that right ear speech discrimination scores were within normal limits and that the bilateral hearing loss would have a minimal impact on employability. In a November 2009 Board hearing, the Veteran's representative indicated that he had been associated with the Veteran and his family for several years. He stated that the Veteran had difficulty hearing conversations or oral instructions and that a person must speak very close to the Veteran's right ear for him to understand. He stated that the Veteran distrusted others and isolated himself including from his spouse and a daughter. He stated that the Veteran did not communicate frequently with his spouse in part because she suffered from dementia or Alzheimer's disease. He further stated that even when the Veteran was employed, he preferred jobs that permitted him to work alone. The Veteran continued to experience loss of sleep and had exhibited an emotional reaction at a previous VA hearing when asked about his military experiences. The Board concludes that total disability based on individual unemployability is not warranted at any time during the period covered by this appeal. The weight of credible lay and medical evidence indicates that the Veteran is not precluded from substantially gainful employment as a result of his service connected disabilities without consideration of his age or the impairment caused by nonservice-connected disabilities. The Board notes that the majority of the evidence regarding the Veteran's anxiety disorder is in the form of lay evidence from the Veteran and his family and a record of his reports to his examining clinicians. The Board finds that the Veteran and his family are competent to report on observable symptoms and that the reports are credible because they are consistent and were accepted by the clinicians as a basis for their assessments and diagnoses. The Veteran's anxiety does result in his desire for social isolation but is not productive of disruptive behavior. Even though the Veteran reported reducing his social interactions and separation from his wife, clinicians have also associated these behaviors with restless sleep patterns, reduced mobility from physical illnesses, and the spouse's mental health disorders. Overall, the Veteran maintained a close relationship with his family and a good working relationship with his Veterans Service Organization representative. Several clinicians noted that the Veteran maintained good cognition, thought and communication processes, accomplished daily activities of a retiree, and managed his own affairs. There was no evidence of suicidal ideations, persistent panic attacks or disruptive behavior. Despite symptoms of intrusive and distractive thoughts and other reactions to wartime memories, the Board places greatest probative weight on the opinion of the VA psychologists in 2004, 2007, and 2009 who evaluated the anxiety disorder as mild and not an obstruction to employment in a position that permitted working alone. The Board acknowledges that the Veteran has difficulty hearing conversations including oral instructions that might be present in an employment situation. However, audiometric testing including tests conducted in 2009 showed that the Veteran experienced mild to moderate loss in the right ear which could be partially overcome by a functional hearing aid. The Board places greatest probative weight on the opinion of the VA audiologists in 2007 and 2009 who concluded that the right ear hearing loss would not preclude all forms of employment. The Veteran reported that he experienced the hearing loss to some extent since service and was able to accomplish the duties of his occupation for many decades. Regrettably, the weight of credible evidence shows that the Veteran is occupationally limited by several significant but nonservice-connected physical disorders that interfere with his mobility and stamina. However, the Board is unable to consider the effects of age or nonservice-connected disorders in a determination of TDIU. The Board also concludes that referral for a TDIU rating on an extraschedular basis is not warranted, as the Veteran's disabilities do not present exceptional circumstances. The Veteran does not receive ongoing mental health care and is able to accomplish daily activities including, infrequently, the operation of an automobile. The weight of the credible evidence demonstrates that the Veteran's current service connected disabilities do not preclude all forms of substantially gainful employment. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. ORDER Total disability based on individual unemployability is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs