Citation Nr: 1306084 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-46 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from January 1942 to June 1949, and from September 1949 to November 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision by the Department of Veterans Affairs (VA) Sioux Falls, South Dakota Regional Office (RO). The Veteran and his wife presented testimony at a Videoconference hearing chaired by the undersigned Veterans Law Judge in April 2012. A transcript of the hearing has been associated with the claims folder. In June 2012, the Board remanded this matter for further development. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Board notes that additional evidence has been received since the most recent December 2012 supplemental statement of the case, accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). In a January 2013 written statement, the Veteran appears to claim entitlement to service connection for an eye disability and a heart disability as directly related to service. Those issues are not currently on appeal and have not recently been adjudicated by the RO. Accordingly, they are REFERRED to the RO for further development. 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). FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2009 - prior to the initial RO decision in this matter - that addressed the notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim (including information specific to substantiating a claim for a TDIU) and of his and VA's respective duties for obtaining evidence. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, and reasonably identified records of his private medical treatment pertinent to his service-connected disabilities. The Veteran was afforded VA compensation and pension examinations relevant to his claim on appeal. At the hearing, the Veteran and his wife described the impact of his service connected disabilities on his activity and abilities, and nothing suggests additional records might exist that have been overlooked. There has been no assertion VA failed to comply with the provisions of 38 C.F.R. § 3.103 (c)(2). Again, the Board remanded this claim in June 2012. Specifically, the Board sought an opinion regarding the Veteran's disabilities and the effect they have on his employability. In reviewing the Veteran's claims file (and as discussed more fully below), such opinions were obtained in June 2012 and July 2012. The Board thus finds substantial compliance with its June 2012 remand instructions. See D'Aries, 22 Vet. App. at 105. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. The Board is cognizant that in a January 2013 written statement, the Veteran has challenged the adequacy of the June 2012 VA examination. Specifically, the Veteran asserted that the VA examiner did not ask the him questions or examine him, but instead, made "small talk." The Board finds that the Veteran's statements as to the inadequacy of the June 2012 VA examination lack credible specificity to overcome the presumption of administrative regularity and adequacy of the examination report. See Sickels v. Shinseki, No. 2010-7140 (Fed. Cir. May 6, 2011). The Veteran has not submitted any evidence suggesting that the June 2012 VA examiner was not qualified to give an adequate examination. Moreover, the June 2012 VA examiner noted in the examination report that the Veteran reported difficulty swallowing, did not have laryngitis at the time of the examination, and did not have any scars from his in-service tonsillectomy. Those specific findings support that the Veteran was, indeed, examined pertinent to his service-connected disability. The Board finds no suggestion that the June 2012 VA examiner wrote any misleading statements in the report or otherwise failed provide an adequate examination. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. In this case, the Veteran contends that he is unemployable as a result of his service-connected disabilities. For the reasons described below, the Board concludes that a TDIU is not warranted. First, the Board notes that the Veteran currently meets the schedular criteria for TDIU. Again, to be eligible for a TDIU under VA regulations, a veteran with more than one service-connected disability must have at least one disability rated as 40 percent disabling and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service connected for bilateral hearing loss, rated as 80 percent disabling; tinnitus, rated as 10 percent disabling; and residuals of tonsillectomy, rated as noncompensable. The Veteran's combined evaluation for compensation is 80 percent. Thus, the schedular requirement for a TDIU has been met. The Board also notes that the Veteran is currently unemployed. The Veteran had previously been employed as a mortician. In written statements and testimony before the Board, the Veteran and his wife reported that the Veteran last worked as a mortician full-time in 1986, and had not been employed since that date. Attempts to verify the Veteran's last date of employment with his past employer were unsuccessful. Nevertheless, there is nothing in the record that shows that the Veteran has obtained gainful employment since that time. The Board also observes that post service, but prior to his education, training, and employment as a mortician, the Veteran worked as a fire inspector, and also received some education and/or training in motel management, fire prevention, and fundamentals of supervision for Navy Civilian Industrial relations. Additionally, the Veteran had approximately 20 years of service in the Navy, during which time he was trained, educated, and/or worked in other areas including harbor defense, harbor piloting, and recruitment. The Veteran has undergone multiple VA examinations during which a VA examiner opined on employability. Additionally, the Veteran underwent VA examinations specific to his claim for a TDIU. Specifically, the Veteran underwent a VA examination in April 2010. The examiner diagnosed the Veteran as suffering from severe bilateral sensorineural hearing loss. She wrote, however, that many people with greater hearing losses than the Veteran's are able to be employed, and that discrimination on the basis of his disability would be prohibited. She therefore concluded that the Veteran's bilateral hearing loss and tinnitus are less likely than not to prevent the Veteran from finding gainful employment. In an almost identical opinion from an October 2011 VA aid and attendance examination, the examiner concluded that the Veteran's bilateral hearing loss and tinnitus are less than likely to interfere with his ability to be gainfully employed. That examiner stated that though the Veteran's hearing loss causes problems in following conversations and hearing speech, people who are deaf or with severe hearing loss interact socially and are employed, and that discrimination against such individuals is prohibited by law. Pursuant to the Board's June 2012 remand, the Veteran was afforded VA examinations in June 2012 and July 2012 for an opinion regarding the effects of the Veteran's service-connected disabilities on his specific employability. In June 2012, the Veteran underwent a VA examination relating to his tonsillectomy residuals. The examiner reviewed the Veteran's claims file and noted that the Veteran had his tonsils removed and was diagnosed with chronic laryngitis during active duty. However, the record did not show that the Veteran currently had symptoms of chronic laryngitis. The examiner also noted that the Veteran complained of difficulty swallowing, but that he had not been evaluated for that problem and that there was no documentation of difficulty swallowing in the electronic medical records. It was further noted that dysphagia was denied by the Veteran on his most recent history and physical in November 2011. Accordingly, the examiner opined that the Veteran's previously diagnosed chronic laryngitis did not interfere with his ability to work, and further, was not present at the time of the examination. In July 2012, a VA audiologist examined the Veteran and reviewed his claims file and VA medical records. The VA examiner noted the Veteran's bilateral hearing loss and indicated that speech recognition scores were very poor on all audiograms. The examiner further recognized that the Veteran's poor speech recognition caused him difficulty following conversations, especially in noise. However, while that aspect of hearing loss made social interaction and following conversations and instructions difficult, it was not impossible. The examiner offered an opinion that the Veteran's "hearing loss and problems with speech recognition alone do not render him unable to secure or follow a substantially gainful employment." The examiner recognized that problems with speech intelligibility will impact the Veteran's ability to talk on the phone or to engage in group dialogue; however, occupations requiring written communication, one-on-one communication, or no communication at all would be appropriate. As examples of work the Veteran could perform, the examiner listed positions involving clerical work such as bookkeepers and payroll clerks. Except as otherwise discussed below, there is no other medical evidence regarding the effect that the Veteran's service-connected disabilities have on his employability. The private and VA treatment records that have been obtained and associated with the Veteran's claims file detail treatment. Those records do not, however, contain any opinions regarding the effect that these disabilities have on his ability to secure or follow a substantially gainful occupation. The Veteran and his wife have provided statements and testimony regarding the Veteran's service-connected disabilities and the effect they have on his employability. Specifically, in his May 2009 and September 2011 claims for a TDIU, the Veteran reported that his hearing loss prevents him from securing or following substantially gainful occupation. In his July 2009 notice of disagreement, the Veteran stated that his hearing loss prevents him from working in the only profession that he has and would also prevent him from learning anything new. Additionally, in a July 2009 written statement, the Veteran's wife stated that the Veteran's loss of hearing "ruined his ability to carryout his professional duties" and made it impossible for him to continue his work. During the April 2012 Board hearing, the Veteran and his wife provided testimony that the Veteran's hearing loss contributed to the Veteran's decision to retire in 1986. However, the Veteran's wife testified that the Veteran quit his job as a mortician due to both physical and mental reasons. She specifically testified that the Veteran "wasn't fired and could have stayed on" but that "it just wasn't the thing to do" for his physical and mental well being. She then indicated that the Veteran did not want to get retrained after leaving his job as a mortician because he is a perfectionist and did not want others to think he was "dumb" if, because of his hearing loss, he had to ask questions repeatedly. Most recently, in a January 2013 written statement, the Veteran indicates that, in addition to hearing loss, he experiences intermittent pain and frequent ear infections. He further reports that he does currently have chronic laryngitis and difficulty swallowing. However, the Veteran does not indicate that those symptoms interfere with his ability to obtain or maintain employment. The Veteran and his wife are competent to state what effects they believe his service-connected disabilities, primarily hearing loss, have had on his employment. Furthermore, the Board recognizes that the Veteran's wife previously worked as a registered nurse and is, therefore, competent to provide medical evidence. However, the Veteran's wife acknowledged during the April 2012 Board hearing that the Veteran could have kept working in 1986, but retired due to a combination of mental and physical health factors. Moreover, she indicated that, following his retirement, the Veteran did not want to get retrained afterwards; she did not testify that he could not get retrained due to his service-connected disabilities. Furthermore, to the extent that the Veteran and his wife assert that the Veteran's service-connected disabilities alone preclude employment, the Board finds their statements to be outweighed by the findings of the VA examiners. Again, two examiners have offered opinions regarding the Veteran's employability, and each opinion has concluded that the Veteran is still able to secure or follow a substantially gainful occupation despite his service-connected disabilities. Importantly, the June 2012 VA examiner found no current tonsillectomy residuals and, further, noted that the Veteran's previously diagnosed chronic laryngitis did not interfere with employment. Additionally, the July 2012 VA examiner determined that the Veteran would still be capable of employment despite his hearing disability and his very poor speech recognition ability, and even provided examples of possible employment. The examiner noted that the Veteran's disability would impact his ability to follow instructions or conversation, speak on the telephone, or engage in group dialogue but nevertheless found that the Veteran would still be capable of work in positions that involved one-on-one communication or little to no communication. Given the detailed findings provided by the June 2012 and July 2012 VA examiners, both of whom examined the Veteran and reviewed the claims file, the Board finds that the foregoing VA examiners' opinions outweigh those offered by the Veteran and his wife. In particular, the Board finds the July 2012 VA opinion more persuasive than the assertions of the Veteran's wife, as it was offered by a specialist in audiology. Moreover, the Board finds that other evidence of record supports the July 2012 VA examiner's opinion. For example, although the Veteran asserted that he is unemployable because his hearing loss prevents him from learning anything new, VA treatment notes and June 2010 statements from the Veteran's wife show that the Veteran successfully underwent weeks-long computer training for the visually impaired during the course of the appeal. Notably, that training was conducted one-on-one. That evidence tends to support that, despite severe hearing loss, the Veteran is not precluded from learning new things, such as using a computer, and further supports the July 2012 VA examiner's finding that the Veteran would be capable of employment involving one-on-one communication. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that the criteria for a TDIU have not been met. (CONTINUED ON NEXT PAGE) ORDER A total disability rating based on individual unemployability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs