Citation Nr: 1307722 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-13 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant; Appellant's daughter ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1948 to April 1952. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the Board sitting at the RO in February 2012. A transcript of the hearing is associated with the claims file. In May 2012, the Board remanded the appeal for further development. The Virtual VA paperless claims processing system does not contain additional relevant evidence. 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). FINDINGS OF FACT 1. The Veteran's service-connected bilateral hearing loss and tinnitus impairs hearing conversations in group settings and high background noise and hearing distant speakers. Hearing aids provide satisfactory improvement. 2. The Veteran's bilateral residuals of cold weather injuries to the lower legs cause pain on motion, limitation of walking and standing endurance, and the need for a cane or walker. 3. The Veteran's combined impairment from his service-connected disabilities alone does not preclude all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2012). 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In July 2007, the RO provided a notice that met the requirements. The notice informed the Veteran of the criteria for award of a TDIU and the Veteran's and VA's respective responsibilities to obtain relevant evidence. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. 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 infantryman with combat service in Korea. He was awarded the Combat Infantryman's Badge and Purple Heart Medal. He contends that his service-connected disabilities preclude him from engaging in substantially gainful employment. Entitlement to a TDIU due to service-connected disabilities requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 a veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by non-service-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 a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a), 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the percentage requirements, a total rating may 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: bilateral hearing loss rated as 50 percent disabling; residuals of cold injuries to the right and left lower extremities, each rated as 30 percent disabling; and tinnitus, rated as 10 percent disabling. The combined rating is 80 percent. Therefore, the minimum schedular criteria for a TDIU are met. The Veteran has the following non-service-connected disabilities or disorders noted on rating records and in VA primary care records: heart disorder with congestive heart failure and hypertension, diabetes mellitus, hip arthritis with osteopenia, depressive reaction, gout, macular degeneration, chronic obstructive pulmonary disease, chronic kidney disease, obesity, and sleep apnea. The issue is whether the veteran's service connected disability precludes him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect some factor, which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). VA has defined "substantially gainful employment" in the Adjudication and Procedural Manual as "employment at which nondisabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-1 MR IV.ii.2.F.24.d. (formerly Manual M21-1, Part VI, Section 7.09(7). Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §4.16(a). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321 (2012), the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994); VAOPGCPREC. 6-96 (1996). This means that the Board should take into account the Veteran's specific circumstances including his disability, his education, and his employment history when determining if he is unable to work. In an August 2006 VA examination, the Veteran reported that he earned a high school diploma and attended two and one-half years of college education. He worked for several decades in a retail business. In a July 2007 claim, the Veteran reported that he last worked as a security officer in 1992 and left the job because of his disabilities. In a telephone contact with a VA representative in August 2007, the Veteran reported that he worked at a textile company that went out of business. In a February 2012 Board hearing, the Veteran stated that he could no longer work because of impaired mobility and endurance in standing and walking. The Veteran stated that he walked slowly and used a cane because his legs gave out as a result of nerve and circulation deficits and foot pain. The Veteran stated that he took regular medication for the nerve disorder and occasionally a medication to relieve pain. He had not returned to school or sought retraining since 1992 and did not have computer skills. He briefly mentioned an inability to enter numbers in a telephone. He reported that he was receiving retirement (not disability) benefits from the Social Security Administration. The Veteran underwent VA examinations of his service-connected disabilities in 2006 and 2007. In May 2012, the Board remanded the appeal in part to obtain additional examinations for hearing loss, tinnitus, and bilateral cold injuries of the lower legs which were performed in June 2012. In July 2006, a VA contract audiologist noted the Veteran's report of difficulty hearing conversation in group situations and in high background noise, even with the use of hearing aids. He sensed tinnitus about once per week. Audiometric testing supported a rating of 40 percent for hearing loss and 10 percent for tinnitus. In September 2007, a VA contract audiologist noted the same reported symptoms and audiometric testing supported an increased rating of 50 percent for bilateral hearing loss. In October 2011, a VA audiologist noted that the Veteran's hearing aids were nearly 4 years old and one was not working. New devices were obtained. At the February 2012 hearing, the Veteran acknowledged that he was able to hear clearly with the use of hearing aids. In a June 2012, a VA audiologist noted a review of the claims file and performed an audiometric examination. The Veteran reported that he stopped attending church services because he still had difficulty hearing at a distance from a speaker. The Veteran also reported that he felt nervous about events around him during a tinnitus episode. Audiometric testing showed slightly improved pure tone threshold averages and degraded speech discrimination scores. Although an increased rating claim was not pending, the results do not reflect an increased rating. The audiologist concluded that although the Veteran had difficulty with communications that required modifications, hearing loss and tinnitus did not impose unemployability because deaf individuals are able to perform gainful employment. The Veteran's lower extremities were examined by a VA contract physician in September 2006. A VA contract physician noted the Veteran's reports of persistent severe pain, a burning sensation, and coldness in the feet and legs, particularly in cold weather. He experienced intermittent claudication after walking 20 yards. He also experienced profuse sweating, recurrent fungal infections, frostbite scar breakdowns, changes in skin color, disturbances in nail growth, edema, and sleep disturbance caused by pain. On examination, the physician noted bilateral ischemia of the toes, atrophic skin and nail changes, pale skin color, and coldness. There was no skin ulceration or leg length difference. Range of motion of the ankles was normal but with pain on motion. Reflexes were predominantly normal except reduced on the dorsal pedis pulse bilaterally. There was pitting edema and toenail fungus infection but no muscle atrophy or loss of sensation. X-rays showed pes cavus and canceal spurs bilaterally and mild degenerative disease of the right great toe. In September 2007, another VA contract physician noted substantially the same symptoms but with an estimate of walking endurance of 1500 yards. On examination the physician noted atrophic scaling of the skin of the feet with edema, fungal infection, and dystrophic nails but no scars, ulcers or persistent coldness. There was the same reflex deficit, some loss of sensation, but no muscle atrophy. Ankle dorsiflexion was normal but plantar flexion was slightly less than normal bilaterally with pain on motion. X-rays of both feet showed prominent plantar calcaneal spurs. In February 2011, a VA nurse performed a telehealth assessment of the Veteran's status using a formatted questionnaire. The nurse noted that the Veteran was living with an adult daughter who acted as a care giver. The nurse noted reports that the Veteran occasionally required assistance with bathing, dressing, meal preparation, and shopping, and required the use of a cane or walker to move about the home. There were no cognitive deficits. The Veteran was able to use the telephone and mange his own financial affairs and medications. In June 2011, a VA social worker noted the Veteran's report of use of a cane and shortness of breath on walking more than 100 feet. He requested that VA provide an electric chair to increase his independence and permit him to go grocery shopping. The record does not show whether VA provided the device or that the Veteran procured a device from other sources. None of these clinicians noted whether the level of impairment was caused by service-connected or non-service-connected disabilities. In February 2012, the VA nurse noted that she received a telephone request from the Veteran's representative for a letter stating that the Veteran was unable to work so that he could receive compensation at the 100 percent rate. In a letter the same month, a primary care physician noted that the Veteran was receiving treatment for chronic obstructive pulmonary disease, diabetes mellitus, high blood pressure, and chronic kidney disease. The physician did not mention service-connected disabilities or discuss capacity for employment. In June 2012, a VA physician noted a review of the claims file and the Veteran's work history since his cold injury in the early 1950s. He noted that the Veteran was able to work satisfactorily in several jobs requiring mobility up to his retirement in 1992. The Veteran experienced pain on walking and required a walker for all mobility. On examination, the physician noted bilateral foot pain, skin color changes, sensitivity to cold, numbness, and nail abnormalities. The physician referred to X-rays obtained in 2008 that showed preserved arches, mild degenerative changes on the right, and small arterial calcifications that the evaluator conditionally associated with diabetes or renal deficiencies. The physician concluded that the Veteran did have the capacity to perform a sedentary job considering only his bilateral lower leg disabilities and not considering the Veteran's age and other multiple illnesses including diabetes, hypertension, chronic obstructive pulmonary disease, renal failure, gout, degenerative disc disease, arthritis of the hip, and sleep apnea. The Board concludes that there has been substantial compliance with the instructions in its May 2012 remand. The paper and electronic claims files contain current outpatient treatment records. The remand instructions directed a single examiner assess the Veteran's service-connected disabilities and provide an opinion whether those disabilities precluded substantially gainful employment. In this case, assessments of hearing acuity required the skills of a specialist, and the Board concludes that both examiners reviewed the claims file and provided opinions assessing the Veteran's functional capacity in the two relevant areas: hearing acuity and mobility. The two clinical areas are sufficiently disparate that separate opinions are relevant, appropriate, and adequate for the adjudicator to apply the clinical observations and opinions to the legal standards. The Board further concludes that the Veteran is both competent and credible in his reports and hearing testimony because he consistently described his hearing and mobility limitations and those descriptions were accepted by clinicians and consistent with clinical observations and pathology. The Board concludes that the service-connected hearing disabilities degrade but do not preclude the Veteran from hearing and understanding communications common in a workplace. Examples are face to face conversations, audiovisual presentations in an indoor, non-industrial workplace, and the use of a telephone. The Veteran reports that he is unable to use a computer or enter numbers in a telephone. The Board interprets this statement as an inability to program numbers in a modern telephone and not an inability to engage in a telephone call. The Veteran's presentation at the hearing and records of outpatient care do not indicate a lack of cognitive ability to use a telephone or to learn computer skills. Any deficits in these skills are not associated with hearing loss, tinnitus, or cold weather injuries. Furthermore, the Veteran acknowledged that his new hearing aids work well. His sensation of nervousness during tinnitus episodes did not coincide with any functional incapacity. Finally, the Board places probative weight on the audiologist's opinion in 2012 that hearing deficiencies, even if severe and uncorrected, do not preclude all forms of employment as patients with greater hearing loss can function in non-industrial workplaces. The Board concludes that the Veteran's service-connected bilateral lower leg, foot, and ankle disabilities impose significant mobility impairment but do not preclude all forms of gainful employment. The Board acknowledges that the Veteran has very limited standing and walking endurance, requires a cane or walker for support, and requested the use of an electric chair to improve his independence. The Veteran's lay statement and medical records also showed that endurance is impaired in part by shortness of breath and nerve and circulation deficits also associated with non-service-connected cardiovascular, renal, and pulmonary disease and diabetes. With the use of the support devices, the Veteran has the mobility to leave the home. He does manage his own financial affairs, which demonstrates the ability to handle documents, evaluate accounts, and use the telephone. There is no evidence that he is unable to drive an automobile. The Board places probative weight on the opinion of the VA physician in 2012 who considered the Veteran's post-high school education, experience in retail sales and as a security supervisor, and concluded that the Veteran is able to perform sedentary work. The Board concludes that appropriate sedentary work could be in administrative office positions such as purchasing, inventory management, financial transactions, and security positions such as camera surveillance that do not require walking and standing. The Board acknowledges that the Veteran's capacity for employment may also be impaired because of age and many other serious illnesses that are not service-connected. These impairments may not be considered under the criteria for a TDIU. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total rating based on individual unemployability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs