Citation Nr: 1303435 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-23 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from November 1952 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the instant matter has been the subject of three prior Board remands. Most recently, the matter was remanded in June 2012 to obtain an opinion regarding whether all of the Veteran's service-connected disabilities combine to render him unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience. After completing the required evidentiary development, the Appeals Management Center (AMC) re-adjudicated the matter and denied TDIU in a December 2012 supplemental statement of the case (SSOC). As discussed in further detail below, the Board finds that there was compliance with the terms of its earlier remands; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDING OF FACT The Veteran's service-connected hearing loss and shell fragment wound residuals do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. The VCAA 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). As part of the notice, VA is to specifically inform the claimant and the claimant's representative 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. VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009); see also Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) ("[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities."). The RO received the Veteran's application for increased compensation based on unemployability in June 2006. In July 2006, the RO sent to him a letter notifying him that to be entitled to a TDIU, the evidence must show that he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. The letter further informed him of the threshold rating requirements of 38 C.F.R. § 4.16(a) and of the requirements for entitlement to TDIU on an extra-schedular basis. The letter also advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include relevant records not held by any Federal agency. The letter also included the notice elements required by Dingess, supra, for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the July 2006 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were fulfilled. Regarding the duty to assist, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. In that regard, the Board finds that all available evidence pertaining to the issue currently before the Board has been obtained. The evidence includes VA examination and opinion reports, VA outpatient treatment records, private treatment records, and lay statements from the Veteran and his family. In this regard, the Board notes that attempts were made to obtain the Veteran's employment records, but that a negative response was received and that the Veteran was notified of that response via a November 2010 letter and afforded an opportunity to submit any relevant employment records in his possession. The Veteran was also contacted with a request that he supply a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) for the private physician who had provided a December 2010 opinion. In response, the Veteran indicated that that physician was no longer in practice and that he had not received any treatment related to his hearing loss. A release form was not submitted to VA. As it is ultimately the Veteran's responsibility to provide private medical records in support of his claim, the Board finds that the agency of original jurisdiction (AOJ) complied with the terms of the earlier remands and no further assistance is required to satisfy VA's duty to assist. Further, the Veteran has been afforded multiple VA examinations and the AOJ has obtained several addendum opinions for the specific purpose of determining whether the Veteran's service-connected disabilities make him unemployable. The Board notes that although the VA examiner did not expressly discuss the VA audiologist's opinions or the lay statements regarding the effects of the Veteran's hearing loss in her June 2012 addendum opinion, there is no indication that that evidence was not considered prior to her providing the addendum opinion. As the Board's June 2012 remand required only consideration of the evidence and the examiner indicated her review of the claims folder, to include all contrary evidence, the Board finds that there was compliance with the terms of its most recent remand. Further, the addendum opinion specifically considered the occupational effects of the all of the Veteran's service-connected disabilities, to include his hearing loss. The Board is satisfied that the examination reports of record, along with the private medical evidence and lay statements of record, provide the Board with an assessment of the Veteran's disability picture as it relates to his employability. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination. II. Analysis A total disability rating for compensation based upon individual unemployability 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 service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). In determining whether a veteran is indeed unemployable, 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 or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service connected for (1) residuals of a shell fragment wound of the left thigh and buttock, muscle groups XIII and XVII, evaluated as 40 percent disabling; (2) residuals of a shell fragment wound of the right thigh and buttock, muscle groups XIII and XVII, evaluated as 30 percent disabling; (3) residuals of a shell fragment wound of the left calf, muscle group XI, evaluated as 10 percent disabling; and (4) bilateral hearing loss, evaluated as 20 percent disabling. His combined disability evaluation is 70 percent, which includes a bilateral factor of 6.2 percent. Thus, the Veteran meets the threshold rating requirements necessary to establish entitlement to a TDIU. See 38 C.F.R. § 4.16(a). As to the issue of whether a TDIU is warranted in this case, the Board notes that the relevant evidence of record includes statements from the Veteran, his wife, and his daughter and several VA examination and opinion reports, as well as VA outpatient treatment reports from Columbus, Ohio, VA medical center (VAMC) and the Newark, Ohio, community based outpatient clinic (CBOC) and private treatment records. Of note, a January 2006 VA examination report recorded the Veteran's alleged problems with pain in the areas where he had the shell fragment wound injuries. The Veteran stated that he experienced weakness in his legs and difficulty with prolonged standing, walking, and sitting secondary to the weakness and pain. He reported that his symptoms were aggravated by sitting on hard surfaces and stated that he had to decrease his activity secondary to his pain. A January 2006 VA outpatient treatment record also indicated that the Veteran had suffered from knee pain since 2003 and back pain since the 1960s. At that time, it was noted that he was retired from employment with the Federal government. In June 2006, the Veteran claimed entitlement to TDIU. He stated that he was unemployable as a result of his service-connected residuals of his shell fragment wounds. He indicated that he had been employed as a warehouse worker from June 1955 to June 1989 with "DCSC" in Columbus, Ohio. In July 2006, the RO requested from DCSC information relating to the Veteran's employment. A response was received indicating that there was no record of the Veteran having been an employee. In his July 2007 VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran stated that when he was employed, he had been placed on light duty because of his service-connected disabilities. (The claims folder contains a medical record dated on May 6, 1981, indicating that the Veteran was given "a slip to continue light work on an indefinite basis, primarily eliminating use of a fork lift and prolonged walking on the concrete floor.") The Veteran stated that when he could no longer tolerate light duty, he quit working on account of his service-connected disabilities. He further indicated that he could not kneel, stand, or sit for any length of time due to his service-connected disabilities, and also could not hear well enough to perform other types of work. In May 2010, the Veteran underwent a VA audiology examination. The audiologist noted that the Veteran had mild to severe sensorineural hearing loss, which had "[s]ignificant effects" on his occupation. The VA audiologist noted that the Veteran's occupational activities were impacted by poor social interaction and hearing difficulties. An addendum to the May 2010 VA audiology examination report was provided in May 2011, which addendum contains the VA audiologist's opinion that hearing loss is not a disability that renders an individual unemployable. The VA audiologist concluded that although the Veteran may have difficulty hearing conversations in the presence of background noise, on the phone, and when he cannot see the speaker's face, he was not unemployable due to his service-connected hearing loss, as many occupations do not rely significantly upon hearing and may be performed successfully despite a hearing loss. In November 2010, a VA Form 21-0820 (Report of General Information) was prepared presumably by a VA employee at the Appeals Management Center (AMC). The report reflected that telephone contact was made with the Veteran, but that the Veteran had so much difficulty hearing over the telephone that his wife had to intervene and "translate" what was being said. The evidence also includes a statement from the Veteran's private physician, dated in December 2010, who opined that the Veteran was unemployable due to his combat injuries. In February 2011, a VA examination was conducted. The examiner recorded the Veteran's subjective complaints of pain and functional impairment. The examiner noted that the Veteran indicated that he had been employed with the "Defense Supply Construction Center" (DSCC) as a stock handler for 34 years, "'doing what [he] could do,' but mostly paper work." The examiner conducted a joints examination and opined that the Veteran was able to secure and maintain substantially gainful employment. The examiner found the Veteran would have no limitations for sedentary employment. For physical employment, the examiner stated that the Veteran would require breaks and changes in position as needed. The examiner noted that the Veteran had been on "light duty" for the entirety of his employment at DSCC, which, according to the Veteran, required him to do a lot of paper work, but not too much heavy lifting. In June 2012, the VA examiner who performed the February 2011 VA examination provided an addendum to that examination report. Based upon review of the claims folder, to include all conflicting evidence regarding the Veteran's hearing loss, the examiner opined that the Veteran is not unemployable on account of his service-connected disabilities. The examiner based her opinion on the fact that when the Veteran was employed, he performed mainly sedentary work in the form of paper work. The examiner found that he would be able to perform similar type work so long as he was allowed to change positions as needed. The examiner also noted that the Veteran's hearing loss did not affect his performance at DSCC and that any current hearing loss could be accommodated in a similar work environment. Upon consideration of the above evidence, the Board finds that the evidence does not establish that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Although the objective evidence demonstrates that the Veteran may be limited in the type of employment he would be able to engage in, it does not support a finding that the Veteran is unemployable. Specifically, in her June 2012 addendum, the VA examiner concluded that the Veteran would be able to engage in sedentary employment similar to that which he previously performed, so long as he was able to change position frequently. The Board has considered the Veteran's assertion that he is unable to sit, stand, or kneel for any length of time, but finds that the VA examiner has accounted for this in stating that the Veteran would be able to perform sedentary work that allowed for him to change positions frequently. Concerning the Veteran's hearing loss, although it is unclear whether the Veteran's hearing loss existed at the time that he was employed, it addition to stating that the Veteran's hearing loss did not affect his job performance when employed, the VA examiner noted that any current hearing loss could be accommodated in an employment setting. Further, the VA audiologist stated her opinion that hearing loss is not a type of disability that would render an individual unemployable. Reading the May 2011 addendum opinion together with the June 2012 addendum opinion, the Board concludes that the occupational impact of the Veteran's hearing loss could be mitigated by people speaking directly to the Veteran in a setting where there is no background noise. As stated above, the fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Rather, the ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. The Board finds, in the instant case, that the evidence weighs against a finding that the Veteran is unable to perform the physical and mental acts required by all types of employment. Rather, it is the opinion of the VA examiner and audiologist that the Veteran would be able to engage in sedentary employment if offered reasonable accommodations. The Veteran has provided no evidence to suggest that any such necessary accommodations had been denied to him or would preclude him from obtaining employment. In this regard, the Board has considered the opinion provided by the Veteran's private physician. However, as determined by the Board in its June 2012 remand, the December 2010 private medical opinion is not adequate to support a TDIU rating because the private opinion contains no supporting analysis for its conclusion; nor does it describe how the Veteran's service-connected disabilities make him unemployable. Indeed, a medical opinion will be considered adequate if it (1) is based upon consideration of the veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions," Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was invited to submit a more detailed statement from the private physician, but failed to do so. For the foregoing reasons, the Board finds that entitlement to a TDIU rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Entitlement to TDIU is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs