Citation Nr: 1314560 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-05 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an extraschedular evaluation for service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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). The Veteran served on active duty from March 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied a rating in excess of 10 percent for service-connected hearing loss. The Veteran testified before the undersigned Acting Veterans Law Judge in June 2010. In August 2010, the Board remanded the issue of an increased rating for hearing loss. The Appeals Management Center (AMC) subsequently issued a February 2011 rating decision which granted a 50 percent evaluation for hearing loss effective from September 14, 2010. In a May 2011 decision, the Board denied a rating in excess of 10 percent prior to September 14, 2010, and a rating in excess of 50 percent from that date. However, the Board remanded the claim for extraschedular consideration by the Director of Compensation and Pension (C&P) Services. The Board also found the issue of entitlement to a TDIU was on appeal and remanded it for development. In September 2011, the Board again remanded the issue of TDIU. In July 2012, the Board remanded both the TDIU and extraschedular hearing loss issues for further development. The issues of entitlement to service connection for posttraumatic stress disorder and heart disease have been raised by the record, specifically in a February 2013 submission from the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected hearing loss has not resulted in frequent hospitalizations and has not been shown to cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. 2. Prior to September 14, 2010, the Veteran had a combined schedular rating of 70 percent; from September 14, 2010, he had a combined schedular rating of 80 percent. 3. The preponderance of the evidence shows that that the Veteran is not unable to secure or maintain substantially gainful employment solely by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.2 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Letters dated in May 2007 and May 2011 were sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. B. Duty to Assist The Veteran's service treatment records, VA treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran was also afforded VA examinations to evaluate his disabilities. VA also obtained opinions from the Director of C&P Services regarding the Veteran's hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; record the relevant findings for rating the Veteran's hearing loss on an extraschedular basis; and provide opinions regarding the impact of the Veteran's service-connected conditions on his employability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Extraschedular Consideration for Hearing Loss The Veteran's service-connected bilateral hearing loss was already evaluated on a schedular basis in the Board's May 2011 decision. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected hearing loss in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran testified at his June 2010 hearing that he been working less while employed at the Ford Motor Company because of his service-connected bilateral hearing loss. Therefore, the matter was referred to the Director of C&P Services pursuant to 38 C.F.R. § 3.321(b). A June 2011 memorandum from the Director of C&P Services stated that there was no interference with employment as a result of hearing loss. The Veteran had testified at his June 2010 hearing that he stopped working at age 62 to collect Social Security benefits. There was also no indication of frequent hospitalization as a result of hearing loss. Therefore, an extraschedular rating was denied. An October 2011 supplemental VA opinion stated that, with hearing aid use and reasonable accommodations as specified in the Americans with Disabilities Act, the Veteran's hearing loss alone would not significantly affect vocational potential or limit participation in most work activities. Employment would be more than feasible in a loosely supervised situation, requiring little interaction with the public. The Board remanded the issue back to the Director of C&P Services for consideration of the Veteran's statements during a February 2009 examination that he had stopped working due to complications from diabetes mellitus and hearing loss. In response, a new memorandum was promulgated in November 2012, which noted that the Veteran's reported reason for his unemployment was his hearing, as well as his inability to coordinate meals and insulin. There was no other evidence other than the Veteran's statements to indicate that his hearing loss impeded his ability to maintain employment. During a December 2012 VA audio examination, the examiner noted that the Veteran's condition impacted the ordinary conditions of daily living, including his ability to work, based upon his statements that if he was not face-to-face with people, he could not understand them. Based on this evidence, the Board finds that the Veteran does not exhibit factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Indeed, it does not appear from the record that he has been hospitalized at all for hearing loss. Although the December 2012 examination noted that the Veteran could not understand people he was not facing, such limitations are contemplated by the assigned schedular rating for hearing loss. Notably, the prior October 2011 opinion found that the Veteran's hearing loss alone would not affect vocational potential or limit participation in work activities. There is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. In particular, the assigned 50 percent disability rating currently in effect for bilateral hearing loss contemplates a significant impact on the Veteran's ability to engage in potential occupational duties. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected hearing loss have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. The Board therefore has determined that an extraschedular rating pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. However, disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). Although the Veteran filed the underlying claim for an increased rating for bilateral hearing loss in April 2007, evidence of unemployability was not presented until a February 2009 statement from the Veteran's spouse. Therefore, the period on appeal for the purpose of adjudicating the TDIU claim is from February 2, 2009, the date the statement was received. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Service connection has been in effect during the period on appeal for bilateral hearing loss (10 percent prior to September 14, 2010, and 50 percent thereafter); diabetes mellitus with erectile dysfunction and retinopathy in both eyes (40 percent); tinnitus (10 percent since December 17, 2012); left thigh and calf shell fragment wound (10 percent); hypertension associated with diabetes (10 percent); right buttock scar (10 percent); left calf scar (10 percent); and a right anterior neck scar (0 percent). His combined rating has been 70 percent prior to September 14, 2010, and 80 percent thereafter. As a result, the schedular criteria for a TDIU have been met throughout the period on appeal. Remaining for resolution is the question of whether there is probative evidence of his unemployability on account of his service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). As the U.S. Court of Appeals for Veterans Claims (Court) explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the U.S. Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), which stated that it is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore at 358. 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In a February 2009 statement, the Veteran's spouse stated that the Veteran was required to inject himself with insulin twice daily, and his diabetes condition resulted in an inability to work or travel. During a February 2009 VA examination for diabetes mellitus, the Veteran stated that he was no longer working due to diabetes and hearing problems. During his June 2010 Board hearing, the Veteran testified that he stopped working at age 62 so he could collect Social Security. However, prior to that, he worked part-time for six years due to problems with hearing and diabetes. As noted above, an October 2011 supplemental VA opinion stated that, with hearing aid use and reasonable accommodations as specified in the Americans with Disabilities Act, the Veteran's hearing loss alone would not significantly affect vocational potential or limit participation in most work activities. Employment would be more than feasible in a loosely supervised situation, requiring little interaction with the public. The Veteran underwent a battery of examinations in December 2012 and January 2013. With respect to retinopathy, he was noted to have 20/20 vision bilaterally, and the examiner stated that the Veteran's eye condition did not impact his ability to work. With respect to diabetes mellitus, the Veteran's condition was treated with medication and insulin, and the examiner stated that neither the condition nor the treatment resulted in any functional impairment or had any impact on physical or sedentary employment. Similarly, the Veteran's hypertension was treated with medication, and neither the condition nor the treatment resulted in any functional impairment or had any impact on physical or sedentary employment. Similar findings were rendered with respect to the Veteran's muscle injuries and erectile dysfunction. In sum, although the Veteran reported that his diabetes and hearing loss significantly affected his ability to maintain employment, the competent medical evidence indicates that his service-connected conditions collectively do not result in a level of functional impairment which renders the Veteran unable to secure or maintain substantially gainful employment. That is, while these conditions result in manifestations and symptoms requiring treatment, it has not been shown that they specifically limit his capacity to engage in occupational activities. While the Board has considered the Veteran's own statements and those of his spouse, they have not demonstrated the necessary knowledge or expertise to render competent opinions regarding the Veteran's overall functional capacity in light of his service-connected conditions. The preponderance of the evidence is against finding that the Veteran is unable to secure or maintain gainful employment due solely to service-connected disabilities. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER An extraschedular rating for service-connected bilateral hearing loss is denied. A TDIU is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs