Citation Nr: 1313495 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-46 274 ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to December 1972. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim of entitlement to a TDIU. The Veteran disagreed with the RO's determination, and this appeal ensued. Per the Veteran's request, he was scheduled to present oral testimony in support of his claim at a travel Board hearing before a Veterans Law Judge at the RO; however, he subsequently advised the RO in May 2012 correspondence that he would be unable to attend the hearing. As such, the Veteran's hearing request is deemed withdrawn. FINDINGS OF FACT 1. The Veteran's sole service-connected disability is characterized as residuals of histoplasmosis chorioretinitis of macula with loss of vision left eye and with loss of vision right eye, currently rated as 70 percent disabling. 2. The Veteran is considered legally blind in the left eye, but it is less likely than not that the Veteran has any significant loss of vision in the right eye; and, he has refused to undergo, on at least two occasions, visual field examinations, and additional components of the neuro-ophthalmology examination, the findings of which are necessary to substantiate his claim. 3. The Veteran's responses to visual acuity testing and his statements as to the subjective loss of vision in the right eye lack credibility. 4. The Veteran's service-connected disability of residuals of histoplasmosis chorioretinitis of macula with loss of vision left eye and with loss of vision right eye does not preclude the Veteran from obtaining or maintaining all forms of gainful employment. CONCLUSION OF LAW The criteria for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in March 2010. This notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The letter also provided notice of what evidence was necessary to substantiate a TDIU claim. In this regard, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded the Veteran the opportunity to give testimony before the Board. Notably, the Veteran did not respond to the March 2010 duty-to-assist letter or provide any authorization to obtain any private treatment records to support his claim. In April 2010, the RO afforded the Veteran a VA general medical examination and a separate VA eye examination to assess the severity of the Veteran's service-connected and non-service-connected disabilities, and whether the Veteran's service-connected disabilities precluded all forms of gainful employment. In May 2010, the examiner provided an addendum to the original examination report; and, in July 2010, a physician and a physician's assistant reviewed the Veteran's claims file and indicated no change in the diagnosis or opinion previously provided. The examination, including the May and July 2010 addenda, is adequate as it addressed the question of entitlement to a TDIU based on the Veteran's sole service-connected disability, and it provided a complete rationale for the findings, based on objective evidence, the Veteran's statements, and sound medical principles. The examiner referred to a neuro-ophthalmology specialist examination from May 2009 and a follow-up report from June 2009 which are not currently of record. However, the examiner's interpretation of these reports is not in question, particularly because the Board is required to base its decisions on independent medical evidence rather than rely upon its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Moreover, Dr. D's reference to them only provides corroboration for her own findings on examination. Given the presumed correct interpretation of the evidence contained in May 2009 neuro-ophthalmologic report and June 2009 follow up report, the actual reports are not necessary to accurately decide this claim. To remand the claim solely to obtain these two examination reports, which have already been summarized by a medical doctor, would not change the outcome of the Veteran's claim; therefore, a remand would serve no useful purpose and would result in unnecessarily impose additional burdens on VA with no benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In addition to the April 2010 examination and subsequent May 2010 addenda, recent VA outpatient records were obtained and associated with the claims file. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. TDIU The Veteran asserts that he is unemployable as a result of his service-connected disability. The Veteran's sole service-connected disability is characterized as residuals of histoplasmosis chorioretinitis of macula with loss of vision left eye and with loss of vision right eye. This disability is currently rated as 70 percent disabling, and the Veteran asserts that he is legally blind as a result. Thus, in essence, the Veteran asserts that he is unemployable due to an inability to see. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered to be substantially gainful employment. 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2012). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340(b) (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran's unemployability is the result of a service-connected disability. See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). As noted above, the Veteran's sole disability rating is 70 percent. The Veteran's disability rating therefore meets the percentage requirement of the schedular criteria for entitlement to a TDIU by virtue of his one disability rated at 70 percent. The remaining question, therefore, is whether the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disability of residuals of histoplasmosis chorioretinitis of macula with loss of vision left eye and loss of vision right eye. The Veteran is legally blind in the left eye (OS), and this is not in dispute. However, the preponderance of the competent and credible evidence is against a finding of legal blindness in the right eye (OD) based on the evidence outlined below. At a VA examination in December 2008, the Veteran reported a loss of vision in the right eye. In his self-reported medical history, the Veteran indicated a progressive loss of vision in the right eye over the previous year. The Veteran reported that he could not see well at any distance. The Veteran's visual acuity in the right eye was listed as 20/400 near, corrected to 20/70; and 20/200-1 far, both uncorrected and corrected. With regard to the Veteran's lens, objective findings indicated posterior polar changes and central posterior subcapsular changes, right eye greater than left eye. On examination of the retina, there were minimal pigmentary changes in the right eye; however, an OCT scan was inadequate for diagnosis. The diagnosis was persistent loss of central vision OS (left eye), which occurred while he was on active duty, stable. Regarding the right eye, the examiner's diagnosis was as follows: "new onset of central vision loss [right eye] ? etiology. The examiner, Dr. D, M.D., specifically indicated that the Veteran needed to have retinal evaluation by a retinal specialist and may need to have Flourescein angiogram (FA) for diagnosis. According to Dr. D, the Veteran refused FA in 2006. In February 2009, Dr. D requested a retinal evaluation on a fee basis from a retina specialist at S & W because she was unable to make a diagnosis in December 2008 with respect to the right eye. A February 2009 private ophthalmology outpatient note from S & W indicates that the Veteran's right eye vision was 20/200 without correction, and near vision was J16, but corrected vision was not reported. An FA was recommended, as was an OCT for the right eye. The impression was subjective visual acuity loss times three months. The same report notes that the FA of the right eye was subsequently performed, and the results revealed good vascular filling without late leak. In March 2009, Dr. D provided an addendum to the December 2008 examination based on the findings from the February 2009 retina specialist's report. Dr. D noted the normal findings as summarized above, and also noted that Goldmann visual field performed OD (right eye)revealed central scotoma. Dr. D consulted with Dr. H who could find no retinal cause for the decrease in central vision in the right eye. Dr. H also found no relationship between the cause of the left eye blindness and the Veteran's reported right eye vision loss. Dr. H suggested MRI and MRA to look for central cause of the central scotoma. Dr. D concluded that there was no link between the Veteran's right eye vision loss and the service-connected disability of the left eye. Dr. D would continue to look for a cause of the decreased vision in the right eye and would request a neuro-ophthalmology consult. The Veteran's November 2009 TDIU claim form indicates that the Veteran had a career as an engineer from 1986 until 1995. The Veteran reported on the form, by checking the box marked "NO" that he did not leave his last job because of his disability. The Veteran also reported, by checking the box marked "YES," that he has tried to obtain employment since he became too disabled to work. An April 2010 VA general medical examination report notes that the Veteran was wearing protective eyewear (dark glasses) due to recent eye dilation. Of particular note, the examiner, Dr. L.Q., P.A., observed that the Veteran ambulated without guidance or assistance despite decreased visual acuity. With regard to the Veteran's employment history, the Veteran reportedly retired in 1995 due to chlorine gas poisoning. The examination report shows that the Veteran's entire medical history was reviewed, including cardiac, pulmonary, genitourinary, musculoskeletal, neurologic, and psychiatric history, and the Veteran was examined, with findings noted on the report. The examiner concluded that the Veteran can function in an occupational environment based on his nonservice-connected disabilities. The examination report was signed by Dr,. A.C., M.D. In a July 2010 addendum, Drs. L.Q. and A.C. noted a review of the claims file, and indicated no change in the previous diagnosis/opinion provided in the April 2010 general medical examination report. The Veteran's eyes were separately examined at a VA eye examination held on the same date in April 2010. Dr. D., who previously examined the Veteran, and is familiar with the Veteran's eye history, noted the eye-related medical history summarized above. Dr. D. referred to a May 2009 Neuro-ophthalmolgy examination when the Veteran's right eye vision was found to be 20/25 best corrected. Dr. D also referred to a May 2009 addendum which noted that the results of a neuro-ophthalmology examination revealed that the right eye refracted to 20/25-1 with -1.25 sphere. Pupillary examination was normal without papillary defect. The Veteran did not want to repeat the visual field or any other part of the examination. The assessment was that there was no pathology found to explain decreased vision in the right eye even with extensive retinal workup and a limited neuro-ophthalmology examination due to Veteran's desire for no more testing. Further, Dr. D pointed out that at a June 2009 neuro-ophthalmology follow-up visit, the Veteran again refused examination. The assessment was history of "recently diagnosed meningioma ? at the anterior interhemispheric area measuring 1.2 x 0.9 cm." The examiner discussed with the Veteran that in order to have a complete assessment of his vision and visual functions, visual acuity check is required. The Veteran deferred the examination and reported that he would return to the clinic if he wants the eye examination. At the time of the April 2010 VA eye examination, the Veteran reported that he could not get a job because of his inability to see. He reported that he used to work as an engineer but he could no longer read so he could no longer draft anymore. In addition, the Veteran reported that he did not drive anymore because he could not see to drive. With regard to visual acuity, the examination report noted refraction OD -1.25 +1.25x178 Add +3.25; OS -1.50+1.00x144. Corrected vision in the right eye was listed as 20/100 near and 20/300 far. However, an examination worksheet that was received in July 2010 shows uncorrected vision in the right eye as 20/300 far and 20/200 near. Corrected vision was "N/A" far, and 20/200 +4.00 near. Regardless of any difference between the worksheet numbers and the examination report numbers, the diagnosis on the April 2010 examination report was normal retinal examination OD (right eye). Dr. D stated the following: If there was a macular abnormality seen on any of the retinal examinations performed at an independent medical clinic and interpreted by a retinal specialist not employed by the VA, I would conclude that there was a possibility that the histoplasmosis seen OS could have affected the right eye but it could not without any retinal findings. After the neuro-ophthalmologist got the [V]eteran to read the 20/25 line OD, he refused any further work up twice. There is no evidence of decreased vision right eye except by the Veteran's account. At the exam today, he walked in from the waiting room and sat down in the exam chair without any guidance and without anyone accompanying him to the exam. There is no physiologic explanation for his reported loss of vision in the right eye. In a May 2010 addendum, Dr. D noted that with regard to the Veteran's ability to function as an engineer, he has had decreased vision in the left eye since 1972 and was able to work as an engineer under those circumstances. Dr. D indicated that there was no objective finding of right eye loss of vision. As such, Dr. D opined that the Veteran should be able to function as he did in 1972. Finally, Dr. D indicated that she might change her mind if the Veteran would complete visual field testing and other components of the neuro-ophthalmology examination that he has refused on two occasions. In essence, the Veteran states that he has significant loss of vision in the right eye, and he purports to "objectively" demonstrate this through simple visual acuity testing and statements that he cannot see out of either eye. However, the Veteran's assertions are not supported by medical evidence. Although the Veteran is certainly competent to report that he cannot see out of his right eye, the veracity of these statements are in question given the conflicting medical evidence in this case, which finds no objective evidence of a right eye vision loss; the observation of the Veteran's ability to walk and sit without guidance; and the Veteran's refusal to appear for additional field examinations. As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Although the Veteran is competent to observe a decrease in his right eye vision, his responses to simple visual acuity testing and his statements of severe right eye vision loss are not found credible because they are inconsistent with the Veteran's observed behavior, and they contradict the objective medical findings. Further, the Veteran refused additional testing that medical examiners deemed necessary to objectively demonstrate vision loss in the right eye. Logically, if the Veteran were trying to persuade VA that he had significant vision loss in the right eye, it would be reasonable to question the Veteran's credibility if he refuses testing that could corroborate his subjective findings. Throughout the appeal period, as noted above, Dr. D was unable to find any cause to explain the Veteran's purported vision loss in the right eye. Some testing was performed, and those findings further support Dr. D's final conclusion that the Veteran did not have a vision deficit in the right eye. Although the Veteran subjectively demonstrates significant right eye vision loss on visual acuity examinations as noted above, at no time has any examiner of record indicated that the Veteran has objectively demonstrated right eye vision loss from a physiological standpoint. Moreover, the April 2010 examiner referred to one visual acuity test when the Veteran could read the card at 20/25, which is in contrast to the Veteran's assertions. Furthermore, the April 2010 general medical examiner and Dr. D both observed that the Veteran did not demonstrate "an inability to see" as evidenced by his ability to walk from the waiting room to the examination chair without any guidance and without anyone accompanying him. Finally, the record clearly shows that the Veteran was counseled by examiners on the need for visual field testing and other eye testing in order to objectively corroborate his subjective reports of the loss of vision in the right eye; however, the Veteran declined such testing without explanation. VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). For all the foregoing reasons, the Veteran's competent evidence of right eye vision loss is not credible. As such, it carries no probative value. The competent and probative evidence demonstrates that the Veteran does not have right eye vision loss, and any additional medical findings that could suggest otherwise could not be obtained because of the Veteran's own inactions. Turning to the question of unemployability, the Board notes that Dr. D concluded that the Veteran is not unemployable due to his service-connected disability because he has full vision in one eye. In this regard, Dr. D opined that the Veteran's service-connected disability is manifested by the same symptoms (legal blindness in the left eye and no vision loss in the right eye) since the initial left eye injury in 1972. Dr. D pointed out that the Veteran was able to work under these circumstances in his field as an engineer for several years (and this is noted on the Veteran's TDIU claim form); and, because the objective findings continue to show no visual deficit in the right eye, Dr. D opined that the Veteran is still capable of gainful employment. In other words, if the Veteran was able to obtain and maintain employment for several years in his chosen field of engineering with legal blindness in the left eye and no vision loss in the right eye, then he is currently not precluded from obtaining and maintain all forms of employment due to his service-connected disability, because the service-connected disability is currently manifested by the same symptoms and level of severity as it was at the time the Veteran was employed for several years, and which Dr. D has specifically indicated, is not productive of vision loss in the right eye. The Veteran reported on his TDIU claim form that he did not retire due to his service-connected disability; therefore, it appears that his service-connected left eye blindness did not preclude employment at the time he retired. Although this fact cannot provide a basis to deny the Veteran's TDIU claim, it does provide evidence that his condition at the time of his retirement was no worse than currently given Dr. D's finding that the Veteran does not have a right eye vision deficit. There is no medical opinion to the contrary, and no objective medical evidence of record showing any significant loss of vision in the right eye, or to explain the Veteran's subjective visual acuity test results and statements of legal blindness in the right eye. Moreover, the only evidence of record indicating an inability to work due to the service-connected disability comes from the Veteran's own reports and subjective test results, which are inconsistent with his own observable actions. This finding, as well as the Veteran's refusal to undergo additional testing which would provide valuable objective findings, provides negative evidence that weighs against the claim and impeaches the Veteran's credibility. In short, the Board finds that the preponderance of the evidence is against the claim; therefore, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a total disability evaluation based on individual unemployability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs