Citation Nr: 1311934 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-37 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1955, August 1956 to August 1960, and from March 1961 to March 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO continued a 20 percent evaluation for bursitis of the left shoulder, granted special monthly pension based on the need for aid and attendance while hospitalized at government expense effective December 15, 2009, and denied TDIU. In March 2010, the Veteran submitted a notice of disagreement with the denial of TDIU and subsequently perfected his appeal in September 2010. In a November 2012 decision, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran is service connected for a left shoulder disability, evaluated at 20 percent effective July 2, 2009; bilateral hearing loss, evaluated at 50 percent effective July 2, 2009 and at 30 percent effective December 1, 2012; and tinnitus, evaluated at 10 percent effective July 2, 2009. The Veteran's combined evaluation for compensation is 60 percent as of July 2, 2009 and 50 percent as of December 1, 2012. 3. The medical evidence of record does not demonstrate that the Veteran is unable to secure or follow substantially gainful employment solely due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a December 2009 letter. In this letter, VA informed the Veteran of the evidence necessary to substantiate the claim for TDIU by specifying the criteria needed for that benefit. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the December 2009 letter included the type of evidence necessary to establish an effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, statements from prior employers, statements from the Veteran, and VA examination reports dated January 2010, June 2012, and December 2012. On a December 2009 Application for Increased Compensation based on Unemployability, via a VA Form 21-8940, the Veteran indicated he receives/expects to receive disability retirement benefits. In May 2012, the RO submitted a request for the Social Security Administration (SSA) National Record Center to provide any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. A May 2012 response noted the requested medical records do not exist and have been destroyed. In a subsequent May 2012 notice letter, the Veteran was informed of the RO's unsuccessful efforts and was requested to send copies of any SSA medical records he may have within 10 days. The Veteran has failed to provide such information, and the Board finds that VA's duty to assist the Veteran has been satisfied. See 38 C.F.R. § 3.159(e). Pursuant to the Board's November 2012 remand instructions, the RO arranged for VA examinations in December 2012. The examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. Hence, the Board concludes that the December 2012 examinations were adequate and substantially complied with the November 2012 remand instructions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Analysis of Entitlement to TDIU In the December 2009 VA Form 21-8940, the Veteran documented that he last worked in 2002, worked as a guard for the Missouri Department of Corrections from 1983 to 1996, left his last job because of disability, and receives/expects to receive disability retirement benefits. The Veteran also noted that because of his health conditions of blindness and hearing loss, he is unable to locate any employment. In a March 2010 notice of disagreement, via a VA Form 21-4138, the Veteran noted that his last full-time employment was with the Missouri Department of Corrections. He is unable to perform that work with his service-connected shoulder and hearing disabilities and he would not be able to work in that field even with assistance or if he could see perfectly. His service-connected condition alone keeps him from working and would not be permitted to take vocational rehabilitation with these limitations. In a September 2010 substantive appeal, via a VA Form 9, the Veteran reported he cannot work because he is legally blind, as tested by VA, and is also very hard of hearing and service-connected for arthritis. With these problems, he cannot work and he has difficulty getting around his own place. Most recently in a January 2013 post-remand brief, the Veteran's representative contends the Veteran is "continues to believe that his service-connected disabilities alone render him unable to secure or maintain substantially gainful employment." VA regulations allow for the assignment of a TDIU rating when a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). In this case, the Veteran is service connected for a left shoulder disability, evaluated at 20 percent effective July 2, 2009; bilateral hearing loss, evaluated at 50 percent effective July 2, 2009 and at 30 percent effective December 1, 2012; and tinnitus, evaluated at 10 percent effective July 2, 2009. The Veteran's combined evaluation for compensation is 60 percent as of July 2, 2009 and 50 percent as of December 1, 2012. Thus, the Board finds the Veteran does not meet the threshold for a schedular TDIU rating where two or more service-connected disabilities are present for any period. The Board must now consider whether there is evidence to warrant assignment of a TDIU rating on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), upon a showing that the Veteran is unable to secure and follow substantially gainful employment due to service-connected disabilities. The Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In order to prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran 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 a 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 (1993). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After a full review of the record, the Board finds that the preponderance of the competent and probative evidence is against the claim for TDIU. As discussed below, the medical evidence of record does not demonstrate that the Veteran is unable to secure or follow substantially gainful employment solely due to his service-connected disabilities. Review of the record, to include the Veteran's DD Form 214 and December 2009 VA Form 21-8940, shows that his highest formal education was completing high school. With regard to previous employment, an August 2010 response from the Missouri Department of Corrections, verified the Veteran was employed as a corrections officer from September 1983 to November 1986 and from June 1992 to June 1999. In addition, September 2010 statements from the Shawnee Bend Precast company noted the Veteran was employed as a mechanic and terminated because vision, hearing, and arthritis made it impossible for the Veteran to safely complete the tasks. At a January 2010 VA audiological examination, the Veteran's chief complaint was unemployability for service-connected hearing loss. Following the clinical evaluation and thorough review of the Veteran's medical records and claims file, the VA examiner affirmed the Veteran has a moderately to severe to profound sensorineural hearing loss with good speech discrimination bilaterally. He opined "that with the proper amplification and reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss alone should not significantly affect vocational potential [and] [e]mployment would be feasible if requiring little interaction with the public." At a January 2010 VA general medical examination, in connection with the claim on appeal, the Veteran's medical history included the service-connected left shoulder bursitis and the following nonservice-connected disorders: hyperlipidemia, chronic obstructive pulmonary disease, hypertension, degenerative joint disease of the knees, diverticulitis, coronary artery disease, and cholecystectomy. Following the clinical evaluation and review of the Veteran's medical records and claims file, the Veteran was noted as currently not employed, retired as of July 1999 due to decreased vision, and was diagnosed, in pertinent part, with left shoulder bursitis with degenerative joint disease. The VA examiner opined, in pertinent part, that the "service-connected left shoulder bursitis with degenerative joint disease would be a physical impairment to obtaining and maintaining employment due to decreased ability to lift, carry, and at times maintain balance due to decreased range of motion." The Court has held that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). As a result, the Board finds the January 2010 VA general medical examiner's opinion is not supported with a complete explanation in light of the specific facts in this case and is of limited probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). In June 2012, the Veteran underwent a VA Disability Benefits Questionnaire (DBQ) examination for hearing loss and tinnitus. The VA examiner noted review of the claims file and opined that the Veteran's hearing loss and tinnitus do not impact ordinary conditions of daily life, including ability to work. Most recently and pursuant to the Board's November 2012 remand instructions, the Veteran underwent VA DBQ examinations for hearing loss and tinnitus and shoulder and arm conditions in December 2012. The VA examiners noted review of the claims file, conducted clinical evaluations, and affirmed the Veteran's diagnoses of bilateral sensorineural hearing loss, tinnitus, and left shoulder bursitis with degenerative joint disease. The December 2012 VA audiologist marked "yes" the Veteran's hearing loss and tinnitus impacts ordinary conditions of daily life, including ability to work, and provided the following opinion with a complete rationale: The Veteran's hearing loss alone should not be a barrier to a wide range of employment settings. Many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. This is not to say that the Veteran's hearing loss would cause some problems depending on the vocation. He may have trouble working well in very noisy environments, and in environments which required him to often use non face-to-face communications equipment (such as speakers, intercoms, etc.), or in jobs which required a great deal of attention to high pitched sounds (such as monitoring medical equipment or other "beeps and pings"). This opinion is made in regards to the Veteran's hearing loss alone, and does not address the difficulties posed by his other disabilities. With regard to employability: with reasonable accommodation according to the Americans with Disabilities Act, his hearing loss and tinnitus alone should not prevent employment in a loosely supervised situation. The December 2012 VA shoulder and arm examiner marked "yes" the Veteran's shoulder condition impacts his ability to work, and provided the following opinion with a complete rationale: In my opinion the Veteran's combined service-connected disabilities of left shoulder bursitis, tinnitus, and hearing loss do not solely prevent him from being able to secure or maintain substantially gainful employment. The Veteran reports that he retired from full-time work in 1999, at the time he was eligible to retire. He states that he also got to the point then that he could no longer pass the gun qualification requirement as a corrections officer due to his vision problems, and that he could no longer drive the prison vehicle safely at night due to his poor eyesight. He later worked part time at a rock quarry in the maintenance department and reports that his vision problems were the reason for stopping that work as well, stating he could no longer see the rocks. I have reviewed the recent December 2012 audiology Compensation and Pension (C&P) findings and I have evaluated this as a non-audiologist as well. We were able to have a fairly normal conversation if I spoke loudly and looked at him when speaking. I had to repeat myself on occasion. I noted that he was not wearing his hearing aides today and it would be expected that his hearing would be better if he had his hearing aides in place. His speech was very good. In my opinion his hearing loss and tinnitus, including when combined with the left shoulder condition, are not so severe that they would prevent him from being able to do many kinds of physical and sedentary work. The Veteran does have limitations in use of his left shoulder as described in the shoulder DBQ. He reported that he has to cut all their own firewood and that this has become difficult. He has pain putting on shirts and coats. He is not able to do overhead work with the left arm or hold the arm out to the side or in front of him or lift more than few pounds with the left arm. He reports that he is right hand dominant. Therefore some kinds of physical employment activity are not possible for him, in particular heavy work involving lifting, pushing, pulling, etc with both arms simultaneously. But jobs that do not require the use of his non-dominant arm are not affected, and there are no other effects from the left shoulder condition on any other body systems or parts of his body besides the left upper extremity. Therefore, considering his left shoulder, hearing, and tinnitus conditions all combined together solely, and ignoring all the other conditions he has, it is my opinion that there are many forms of both physical and sedentary gainful employment that he could do. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability picture, the evidence of record does not support the claim on appeal. In making this determination, the Board is not refuting the Veteran's noted physical limitations; however, the evidence does not show an inability of the Veteran to secure or follow gainful employment solely due to his service-connected disabilities. The Board notes that the Veteran's employment history, educational leve, and vocational training are consistent with his ability to attain both active and sedentary employment, in spite of his service-connected left shoulder bursitis with degenerative joint disease, bilateral hearing loss, and tinnitus. Thus, the Board finds that TIDU is not warranted on a schedular or extra-schedular basis. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim of entitlement to TDIU, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to TDIU is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs