Citation Nr: 1301879 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-30 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to October 1945. This matter was previously addressed as part of remand issued by the Board of Veterans' Appeals (Board) in September 2012. At that time, the Board considered a claim for TDIU which had been denied as part of a December 2009 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In its September 2012 remand, the Board sought a medical opinion addressing whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board pointed out that the Veteran had been afforded a VA traumatic brain injury examination in September 2009, at which time the Veteran reported only rare mild headaches, poor balance issues for 20 years, painful left foot toes, and numbness and paresthesias in hands and feet due to peripheral neuropathy. The Veteran also reported that his peripheral neuropathy required him to use a walker for balance issues. The Veteran denied any psychiatric or cognitive problems other than mild anxiety. Upon examination it was noted that the Veteran had abnormal reflex responses and decreased sensation in his upper and lower extremities. The Veteran reported being retired after 32 years of employment as a mail carrier. The examiner noted that most of the Veteran's current physical problems were mostly due to his peripheral neuropathy, which is not service connected. The Board also observed in September 2012 that the Veteran had also been afforded a VA Audio examination in July 2009 during which he reported difficulty hearing speech in noisy environments as well as hearing women's voices. The Veteran further reported recurrent but not constant tinnitus. The Veteran was diagnosed with mild to profound hearing loss in the right ear and mild to severe hearing loss in the left ear. No opinion with regard to whether the Veteran's hearing loss affected his employability was supplied. The record reflects that service connection is in effect for compound fracture with defects of skull forehead currently rated as 30 percent disabling, bilateral hearing loss currently rated as 30 percent disabling, scar of right foot medial side currently rated as 10 percent disabling, scar of the left tibia currently rated as 10 percent disabling, tinnitus currently rated as 10 percent disabling, mildly disfiguring multiple scars of the forehead, left cheek, and left neck currently rated as 10 percent disabling, and scar of the right forearm currently rated as noncompensable. The Veteran currently has a combined rating of 70 percent, effective from September 17, 2008. Based on the above-referenced facts, the Board in September 2012 observed that while neither the above-discussed VA audiological nor traumatic brain injury examinations indicated that the Veteran's hearing loss or skull fracture injury individually rendered him substantially unemployable, there was no opinion of record regarding whether the Veteran's service-connected disabilities, when considered in combination, rendered the Veteran unable to maintain substantially gainful employment. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore in compliance with Barr, the Board in September 2012 concluded that an opinion with regard to whether the disabilities, in combination, could render the Veteran unable to maintain substantially gainful employment is warranted. At that time, the Board also observed that the Veteran should be scheduled for a VA examination, and the examiner should be asked to conduct a physical examination of the Veteran, review of the medical evidence, and provide a medical opinion addressing the question of whether the Veteran's service-connected disabilities combine to make him unemployable. See 38 U.S.C.A. § 5103A(d) (West 2002); Friscia v. Brown, 7 Vet. App. 294 (1995). Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A. 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. See 38 C.F.R. § 4.16 (2012). 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." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2012). The United States Court of Appeals for Veterans Claims (Court) noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): The question of whether there is an inability to engage in substantial gainful activity must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Board's September 2012 remand ordered that the following development be conducted: 1. The Veteran should be afforded a VA examination to determine the effect of his service-connected disabilities (compound fracture with defects of skull forehead, bilateral hearing loss, scar of right foot medial side, scar of the left tibia, tinnitus, mildly disfiguring multiple scars of the forehead, left cheek, and left neck, and scar of the right forearm) on his employability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on the Veteran's employability. The examiner should opine as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected disabilities combined, without consideration of his nonservice-connected disabilities or age, render him unable to secure or follow a substantially gainful occupation. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. Pursuant to the Board's September 2012 remand instructions, the Veteran was afforded a VA examination in November 2012. Review of the "DBQ" (Disability Benefits Questionnaire) report, shows that the VA examiner, after reviewing the Veteran's claims folder and examining the Veteran, observed that several nonservice-connected disorders (peripheral neuropathy, myasthenia gravis, and obstructive sleep apnea) had, in essence, an adverse affect on the Veteran's ability to perform "physical occupational activity." The examining physician also opined that "it is less likely as not that the [V]eteran's bone and scar service-connected disabilities render him unable to secure or follow a substantially gainful occupation." While again observing that the Veteran is also service-connected for bilateral hearing loss (30 percent) and tinnitus (tinnitus (10 percent), the examiner also commented, in part, that "[t]here are no other effects on physical or sedentary employment due to his combined service connected condition other than as documented in audiology C&P exam regarding the hearing...." To this, the Board again notes, as it did in September 2012, that the previously afforded VA audio examination, conducted in July 2009, did not include an opinion with regard to whether the Veteran's hearing loss affected his employability. The Board finds that this opinion did not adequately respond to the questions posed in the September 2012 remand. The Veteran's bilateral hearing loss is service-connected, and, in fact, is currently evaluated as 30 percent disabling, equal to the disability evaluation assigned to his service-connected compound fracture with defects of skull forehead. Because the physician did not address the Veteran's bilateral hearing loss (or tinnitus), the medical question concerning whether the Veteran's service-connected disabilities result in his being unemployed has not been satisfactorily answered. Therefore, the development ordered by the Board in September 2012 was not sufficiently accomplished. Additional action is therefore required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should schedule the Veteran for a VA audio examination to determine the effect of his current service-connected bilateral hearing loss and tinnitus on his employability. The examiner is requested to review all pertinent records associated with the claims file and to comment on the combined effect of the Veteran's service-connected bilateral hearing loss and tinnitus on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, it is at least as likely as not that the service-connected disabilities are of such severity to result in unemployability. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development action, as well as any other indicated development, has been conducted and completed in full. If the response is deficient in any manner, the RO/AMC must implement corrective procedures. 3. After completion of all indicated development, the RO/AMC should readjudicate the claim in light of all the evidence of record. If the benefit sought on appeal remains denied, then the Veteran and his accredited representative should be provided a Supplemental Statement of the Case (SSOC) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).