Citation Nr: 1313201 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-39 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the pendency of the appeal, in a separate March 2009 Board decision, the Board reopened a claim of service connection for chronic bronchitis and remanded the claim to the RO/AMC. The RO/AMC subsequently granted the claim for service connection for chronic bronchitis but recharacterized it as chronic obstructive pulmonary disease (COPD). This grant represents a full grant of the benefits sought on appeal for this issue, and therefore, this issue is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In July 2012, the Veteran testified at the RO before the undersigned. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including VA medical records dated from May 2011 to October 2012, are potentially relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. FINDINGS OF FACT 1. The Veteran's service-connected COPD, defective hearing, tinnitus, neurodermatitis, and hemorrhoids combine to a 90 percent rating. 2. The Veteran has work experience in warehousing and shipping and as a postal worker; he has two years of a college education. 3. The weight of the competent and probative evidence indicates that the impairment caused by the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the Board's favorable disposition to grant the claim for a TDIU, the Board finds that no discussion of VCAA compliance is necessary at this time. Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person 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, the disability shall be ratable at 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 (2012). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2012). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, neither the veteran's nonservice-connected disabilities nor advancing age may be considered. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is currently service connected for COPD, rated as 60 percent disabling; defective hearing, rated as 60 percent disabling; tinnitus, rated as 10 percent disabling; neurodermatitis, rated as 10 percent disabling; and hemorrhoids, rated as 10 percent disabling. The overall combined disability rating is 90 percent. 38 C.F.R. § 4.25. Therefore, the Veteran meets the threshold disability percentage criteria laid out in 38 C.F.R. § 4.16(a) (2012). The evidence indicates that the Veteran has two years of a college education. After discharge from service, he worked in warehousing and shipping for 3 years. Subsequently, he worked as a postal worker until he retired in 2008. VA and private medical records dated from March 2007 to October 2012 show that the Veteran received intermittent treatment for various service-connected as well as non-service-connected disabilities. These disabilities included defective hearing; hypertension; chronic kidney disease/renal insufficiency; COPD; otorrhea; Eustachian tube dysfunction; gout; hyperurecemia; cerumen removal; congestive heart failure; anemia; osteoarthritis of the ankles, hands, knees, cervical spine, thoracic spine, and lumbar spine; cardiomyopathy; anxiety/delirium; coronary artery disease; refractive error/presbyopia; hyperlipidemia; gastroesophageal reflux disease; a mastoidectomy; and left arm paresthesias. The evidence indicates that the Veteran required adjustments to his hearing aids on multiple occasions. Additionally, he was hospitalized from August 2010 to September 2010 for arthroscopic irrigation and debridement of the right ankle and right knee joints. During this hospitalization, the Veteran's condition was complicated by a COPD exacerbation, which necessitated oxygen/aerosol respiratory therapy. An October 2011 VA medical report reveals that the Veteran received emergency room treatment for another COPD exacerbation. An October 2012 VA treatment report indicates that the Veteran was hospitalized for cardiac catheterization. On VA examination in July 2008, the Veteran reported working in warehousing and shipping from 1975 to 1978. Subsequently, he worked at the post office from February 1978 to February 2008. He injured his back in 1989 while working at the post office and had back problems throughout his career there. He stated that he had worked as a mail carrier until his back injury and was later switched to a clerk's status in 1996 to work inside the post office until his retirement in 2008. He maintained that he had been moved from job to job within the postal service after his back injury and that he had decided to retire due to all of his health problems since he had been eligible to retire after 20 years of working at the post office. The Veteran indicated that he had not applied for any jobs since his retirement because he felt that companies would not want to hire him due to his bad hearing problems and back problems. He reported that he was not sure that he could tolerate working in light of these problems. The examiner noted that the Veteran's hearing was bad with conversational speech even with hearing aids in place and that there was difficulty taking the Veteran's history during the interview. The examiner indicated that he was not sure that companies would consider hiring the Veteran if he had to work at a job where he met with the public. The Veteran complained that his multiple surgical history of back problems would deter companies from hiring him because the postal office had needed to constantly switch his assignments to jobs that he could perform without aggravating his back. He stated that his doctors had restricted him from lifting anything over 20 pounds, reaching, bending, squatting, or standing in place for long periods. The Veteran reported having special amplifications at home to use with his telephone but that he had been unable to obtain any amplification to use at the post office during his time working there. The examiner noted that the Veteran was applying for a type of mobile device that would help him out with his hearing. The Veteran maintained that in his everyday activities at home, he did a lot of lip reading to get by without making his hearing loss obvious. Upon examination, the examiner found that unemployability was currently affected by the Veteran's service-connected hearing loss because it caused limitations in conversational hearing and telephone response in a business setting. He noted that the Veteran had obviously tried to do some lip reading during the examination, but he had still experienced difficulty with normal conversational talk and had become confused about directions and answers during the history-taking portion of the examination. He also reported that the Veteran had limitation when voice intensity was raised, although he did have a better ability to hear with increased intensity. The examiner opined that the Veteran's hearing loss had a significant effect on his usual occupational functioning. Regarding the Veteran's non-service-connected back problems, the examiner found that the history of six prior back surgeries, including a 2005 surgery that had resulted in a long course of treatment caused by infection, would make it extremely difficult for the Veteran to find employers that would overlook his back problems. He explained that the Veteran's restrictions from lifting anything over 20 pounds, reaching, bending, squatting, or standing in place for long periods would limit his job possibilities. The examiner opined that due to the Veteran's hearing and back problems, employers were not going to be very interested in hiring the Veteran for a job in the current job market, and therefore, the Veteran was felt to be unemployable. The Veteran's other service-connected disabilities of hemorrhoids, neurodermatitis, and tinnitus were not found to be significant functional limitations that would interfere with employability. The examiner also reported that the Veteran had left work because of the problems with finding things that he could do that would not require hearing capability or bother his back. Because this had required constantly moving from place to place, it had become an intolerable situation for the Veteran to continue. The Veteran had been eligible to retire and had decided to make the move. At a December 2008 VA audiological examination, upon examination, the Veteran was diagnosed with moderate to severe sensorineural hearing loss in the right ear, moderately severe to profound sensorineural hearing loss in the left ear, and bilateral tinnitus. The examiner opined that a disability such as hearing loss did not render an individual unemployable because gainful employment should be possible with state-of-the-art amplification, assistive technology, and/or vocational rehabilitation, particularly within the confines of the Americans with Disabilities Act. On VA respiratory examination in March 2010, the Veteran complained that he could only walk 2 blocks before he experienced shortness of breath. A pulmonary function test revealed obstructive pattern with moderate impairment. Concomitant restriction or air-trapping could not be ruled out, and there was a significant bronchodilator response. Diffusion was within normal limits. He was diagnosed with COPD, which was noted to be presently stable on inhalers. In an August 2010 VA addendum, the examiner reiterated that the Veteran's COPD was presently stable on inhalers and noted that the Veteran had denied any recent COPD exacerbations or complications secondary to his COPD. At a July 2011 VA examination, the Veteran was noted to have mild to moderate COPD. He reported a chorionic, slightly productive cough but denied any chest pain, orthopnea, night sweats, fever, or paroxysmal nocturnal dyspnea. He complained of getting out of breath after walking for only 1 block or so. He stated that he would stop briefly after walking a block but that he would try to take a three-block walk every day. The Veteran also reported wearing hearing aids for treatment of deafness with some benefit. He was noted to have been previously diagnosed with right sensorineural hearing loss and left mixed hearing loss, with previous chronic otitis media and surgery. The Veteran did not indicate that he had any current problems with hemorrhoids. Upon examination, the Veteran was diagnosed, in pertinent part, with moderate COPD and severe mixed hearing loss. The examiner opined that the Veteran's deafness would significantly impair his ability to maintain employment and that his breathing problem would also limit his employability because it would limit him to very sedentary activity. On VA audiological examination in July 2011, after examination, the Veteran was diagnosed with moderately severe to severe sensorineural hearing loss in the right ear and severe to profound sensorineural hearing loss in the left ear. The examiner again opined that a disability such as hearing loss did not render an individual unemployable because gainful employment should be possible with state-of-the-art amplification, assistive technology, and/or vocational rehabilitation, particularly within the confines of the Americans with Disabilities Act. The Veteran testified before the Board at a travel board hearing in July 2012. The Board notes that during the hearing, the Veteran had to ask his representative to repeat himself several times. Testimony revealed, in pertinent part, that since the Veteran had stopped working in February 2008, he had attempted to apply for jobs online, but he had been told by potential employers that due to his numerous disabilities, he would be too expensive to insure medically. The Veteran testified that he would only be offered part-time employment due to the cost of medically insuring him. He reported that he had worked as a mail sorter in the post office but that he had been unable to keep up with the job, which had eventually forced him out. He stated that his duties had required him to call and notify shipping truck drivers if the numbers on his sheet had not matched up with the numbers on the packages that were going out on the trucks. He indicated that he had been unable to communicate with the truck drivers through two-way radio or telephone due to his defective hearing and that the post office had not provided a special telephone for amplification. He maintained that he had been moved from job to job within the postal service, which had forced him to retire because he had been unsatisfied with being constantly moved around due to his inability to communicate with others. He testified that his hearing prevented him from getting the correct information over the telephone, caused him to misunderstand others, and was isolating. He also reported that his COPD was currently stable, but that he required the use of a nebulizer three times a day. He stated that each nebulizing session lasted about an hour, which included the set-up of the machine, the treatment itself, and the clean-up. He indicated that if he were employed, he would have to take time off every day for treatment. He maintained that he had not been allowed to bring his nebulizing equipment to the postal office for treatment. He testified that without his nebulizing treatment, he would experience tiredness, shortness of breath, dizziness, wheezing, unfocused eyes, and weakness. In a December 2012 VA addendum opinion, upon reviewing the Veteran's claims file, the examiner found that the Veteran's service-connected conditions had a moderate adverse impact on his functional capacity in the occupational environment but did not render him incapable of maintaining substantially gainful employment. The examiner noted that a sedentary occupation was medically feasible and therefore concluded that the Veteran was not considered to be unemployable on the basis of his service-connected conditions. The Veteran has only worked as a postal employee or in the warehousing and shipping field. The evidence shows that the Veteran experienced shortness of breath after walking for only 1 or 2 blocks. Moreover, in September 2010 and October 2011, the Veteran had to be hospitalized to receive oxygen/aerosol treatment for episodes of COPD exacerbation. Indeed, a July 2011 VA examiner opined that the Veteran's breathing problem would limit his employability because it would limit him to very sedentary activity. These findings suggest that any work that involved physical labor would not be feasible. Additionally, although the Veteran reported at his July 2012 hearing that his COPD was stable, he also indicated that this was because he used a nebulizer three times a day. Without the nebulizing treatment, the Veteran would experience tiredness, shortness of breath, dizziness, wheezing, unfocused eyes, and weakness. However, the evidence shows that each nebulizing session lasted about an hour, which included the set-up of the machine, the treatment itself, and the clean-up. The Board finds that this would not be practical in an employment setting, as the Veteran would have to take up to 3 hours off of work every day in order to receive his nebulizing treatment. Indeed, the Veteran indicated that when he had still been working at the postal office, he had not been allowed to bring his nebulizing equipment to work for treatment. Furthermore, even if the Veteran were to have a sedentary job, the Board finds that his severe hearing loss would still make it extremely difficult for him to function. The evidence consistently shows that the Veteran has trouble understanding and communicating with people. During the July 2012 hearing, the Veteran was noted to have asked his representative to repeat himself several times. Additionally, both the July 2008 and July 2011 VA examiners found that the Veteran's hearing loss would significantly impair his ability to obtain and maintain employment. Specifically, the July 2008 examiner found that the Veteran's hearing was bad with conversational speech even with hearing aids in place and reported having difficulty with taking the Veteran's history during the interview. He noted that the Veteran had obviously tried to do some lip reading during the examination, but he had still experienced difficulty with normal conversational talk and became confused about directions and answers during the history-taking portion of the examination. The Veteran's hearing loss was found to cause limitations in conversational hearing and telephone response in a business setting. The examiner also indicated that he was not sure that companies would consider hiring the Veteran if he had to work at a job where he met with the public. Indeed, the Veteran reported that due to his defective hearing, he had been forced into retirement because he had been unable to communicate with others despite being constantly moved from job to job. He indicated that when he had been working, his defective hearing had rendered him unable to communicate with the truck drivers through two-way radio or telephone as required by the job. He also reported that the post office had not been able to provide a special telephone for him for amplification. Additionally, since his retirement in February 2008, the Veteran had attempted to apply for jobs online, but he had been told by potential employers that due to his numerous disabilities, he would be too expensive to insure medically, and that as a result, he could only be offered part-time employment. The Board finds that sedentary employment would also be unfeasible for the Veteran due to his inability to communicate effectively with others and the fact that many employers lacked the resources to insure or accommodate his disabilities. The Board acknowledges that the December 2012 VA examiner opined that the Veteran was not considered to be unemployable on the basis of his service-connected conditions because sedentary employment was medically feasible. However, the examiner did not provide a rationale for why sedentary employment was medically feasible, given the well-documented limitations that the Veteran had due to his defective hearing or the fact that the Veteran would require taking up to 3 hours off of work a day for his nebulizing treatments. If the examiner does not provide a rationale for the opinion, that weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Therefore, the Board places low probative value on this opinion. The Board also notes that the December 2008 and July 2011 VA audiological examiners found that the Veteran's hearing loss did not prevent gainful employment because gainful employment should be possible with state-of-the-art amplification, assistive technology, and/or vocational rehabilitation. However, the examiners only considered the Veteran's hearing loss in isolation and did not consider whether all of the Veteran's service-connected disabilities, taken together, precluded him from obtaining or maintaining gainful employment. Additionally, the overall evidence shows that many employers, including the Veteran's long-time employer, did not have the resources to provide assistive technology or amplification tools to accommodate the Veteran's hearing loss. Moreover, although the Veteran uses hearing aids, the evidence demonstrates that he still has severe difficulty in communicating and must resort to attempted lip reading to try and understand what is being said. Even when the Veteran attempted to lip read, he still became confused and had difficulty with conversational talk. Therefore, the Board places low probative value on these opinions as well. Thus, given the Veteran's educational and occupational history and the constraints noted above, and resolving all doubt in favor of the Veteran, the weight of the competent, probative evidence indicates that the Veteran as likely as not has been prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. In summary, the Board finds that the Veteran has met the criteria for a TDIU, and his service-connected disabilities, considered together, render him unemployable. Accordingly, reasonable doubt is resolved in favor of the Veteran, and entitlement to a TDIU is granted. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs