Citation Nr: 1315568 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-20 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1957 to October 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, which, in pertinent part, denied the TDIU claim. This matter was remanded by the Board in February 2012 for further development. The requested development has been completed insofar as possible and the matter is now ready for appellate review. 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). FINDING OF FACT The weight of the competent and probative evidence of record demonstrates that the Veteran's service-connected disabilities alone are not of such nature and severity as to prevent him from securing or following any substantially gainful employment. CONCLUSION OF LAW The criteria for a total compensation rating based on individual unemployability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that a September 2007 letter provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further asked him to submit relevant evidence in his possession. With regard to notice as to the disability rating and effective date elements of the claim, the Veteran was also informed of these elements in the September 2007 letter. VA has also complied with its duty to assist the Veteran in substantiating the claim. It appears that all pertinent post service treatment records have been requested and that all available records have been obtained. Opinions were also obtained from VA examiners with regard to the Veteran's TDIU claim. The results of these examinations are sufficient in order to properly rate the Veteran's claim. The Veteran was most recently provided with a VA orthopedic examination in April 2012 and in October 2012 an opinion was obtained from a VA audiologist regarding hearing loss. Both VA examiners considered the Veteran's disability picture, employment history, and the Veteran's assertions prior to rendering an opinion that addressed the issue presented by the Veteran's claim. Not all of the Veteran's service-connected disabilities were considered in a single examination because of the diverse nature of those disabilities. As such, two VA examiners, with different competencies, were required to fully address the Veteran's claim. Thus, when considered together, the Board finds that the opinions are adequate for purposes of determining entitlement to TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and the ability to provide testimony at a hearing if so desired. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. TDIU Controlling laws provide that a TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2012). In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other Veterans with the same disability rating. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, 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 Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Service connection is currently in effect for bilateral hearing loss, rated as 60 percent disabling; lumbosacral strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; radiculopathy of the left lower extremity associated with lumbosacral strain, rated as 10 percent disabling; and radiculopathy of the right lower extremity, rated as 10 percent disabling. The combined disability evaluation is 80 percent. As the Veteran has a combined disability evaluation of 80 percent, with one disability evaluation over 40 percent, he meets the criteria for consideration under 4.16(a) for TDIU. The Veteran maintains that he is unemployable as a result of his service-connected disabilities. In support of his claim, the Veteran submitted a June 2007 letter from the owner of Pacific Consulting Engineers. D. D. indicated that the Veteran was employed from 1984 through 2005. He noted that the Veteran's duties included full charge of design projects. This included communications with the clients, manufacturers, building departments, and contractors. Mr. D. stated that in 2005, the Veteran's ability to communicate effectively and efficiently was impaired by his loss of hearing to the degree that he could no longer perform the duties of his position with Pacific Consulting Engineers. In conjunction with this claim, the Veteran was afforded a VA general medical examination in November 2010. At the time of the examination, the Veteran was noted to be service-connected for bilateral hearing loss and tinnitus. It was indicated that the Veteran had not worked since 2006 as he had to quit work because of hearing loss. Following examination, the Veteran was diagnosed as having low back strain with x-rays showing moderate degenerative disc disease at L5/S1 with osteophytes. It was indicated that the Veteran's occasional low back pain did not hinder him from working. In the February 2012 decision noted above, the Board, in addition to remanding the TDIU issue, also granted service connection for lumbosacral strain. In the February 2012 decision, the Board indicated that despite the fact that the Veteran met the minimum criteria for TDIU, it was unclear whether his service-connected disabilities of bilateral hearing loss and tinnitus, in and of themselves, precluded the pursuit of a substantially gainful occupation. It noted the letter the Veteran had submitted from his employer. The Board further observed that at the time of the November 2010 VA examination, the Veteran reported that he had to resign from his latest position in drafting and design due to hearing loss. The Board observed that the record did not contain a medical opinion regarding whether the Veteran's service-connected disabilities, in and of themselves, precluded him from following a substantially gainful occupation. The Board further observed that as service connection for low back strain had now been granted, that disability's effect on employment should also be addressed. The Board requested that the Veteran be scheduled for a VA medical examination for an opinion regarding whether it was at least as likely as not (50 percent or greater likelihood) that the Veteran's service-connected disabilities, in and of themselves, prevented him from securing or maintaining substantially gainful employment. Full rationale for all opinions and conclusions was to be provided. Subsequent to the Board decision, the Appeals Management Center (AMC), acting on behalf of the RO, assigned a 10 percent disability evaluation for the Veteran's now service-connected lumbosacral strain. In accordance with the February 2012 Board decision, the Veteran was afforded a VA orthopedic examination in April 2012. At the time of the examination, the Veteran indicated that he experienced mild daily mechanical thoracolumbar back pain and intermittent moderate bilateral sciatica. The Veteran stated that he had been discharged from his position as an engineering draftsman related to communications difficulties, particularly telephone communications due to his service-connected hearing loss. The examiner indicated that the Veteran had mild left and right lower extremity radiculopathy. Following examination, the examiner indicated that the Veteran was not unemployable due to his service-connected musculoskeletal condition. She stated that the Veteran appeared capable of sedentary work. In an October 2012 addendum, the examiner indicated that she had reviewed the Veteran's entire claims folder and that there was no change in her assessment. In October 2012, an opinion as to employability was obtained from a VA audiologist. The examiner indicated that the claims folder was available for review. The examiner stated that based upon the Veteran's hearing loss, it was to be expected that without proper amplification he would have difficulty understanding speech, especially in the presence of background noise or if someone was speaking from a distance. It was also noted that he would have difficulty on the telephone and with the television. The examiner indicated that the Veteran would do best in quiet situations where the speaker was facing him and at a close distance. The examiner noted that the Veteran currently wore VA issued hearing aids, which were appropriate for his hearing loss. The examiner stated that the Veteran should not have any adverse complications to his functional or daily activities as a result of his current thresholds, especially when wearing his hearing aids. The examiner noted that with reasonable accommodations, as specified in the Americans with Disabilities Act, the hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. The examiner indicated that employment would be more than feasible in a loosely supervised situation. Following the April 2012 VA examination and the October 2012 addendum report, the AMC granted service connection for right and left lower extremity radiculopathy and assigned separate 10 percent disability evaluations. The AMC also increased the Veteran's disability evaluation for his lumbosacral strain from 10 to 20 percent, effective the date of the April 2012 examination. In her February 2013 written argument, the Veteran's representative requested that the Veteran be afforded an additional VA examination for the purpose of obtaining a medical opinion as to the Veteran's employability. The representative noted that as the Veteran was granted service connection for radiculopathy of the bilateral lower extremities in December 2012, the effects of these conditions on his employability had not yet been rated. The representative then noted all of the Veteran's service-connected disabiities and their assigned disability evaluations and indicated that the Veteran should be afforded a new VA examination to consider whether all of the service-connected disabilities affected his ability to secure substantially gainful employment. She requested that the Veteran be afforded a general medical examination or in the alternative that his claim be referred to a vocational specialist who could consider these disabilities together with occupational potential in forming an opinion. She contended that without an examination which evaluated all of the Veteran's conditions, VA must rely solely on medical opinions which evaluated the disabilities independently of each other and did not consider the cumulative effect on his employability. The representative further indicated that the audiological evaluation did not consider all the positive evidence in favor of the Veteran. She noted that the Veteran had worked for the same company for 21 years and referenced the letter that had been supplied by his former employer. She stated that these factors were extremely relevant to whether he was able to further obtain substantial gainful employment and that these factors should have been considered by the examiner. The representative also noted the VA audiologist's suggestion of accommodations with regard to the Veteran's hearing loss lent support to the claim of unemployability. The representative further indicated that the VA orthopedic examiner, while noting that the Veteran's condition impacted his ability to work, stated that he was still capable of sedentary work. She reported that this conjecture, without more specific rationale, was inadequate because it failed to produce evidence that the Veteran could perform work which would produce sufficient income to be other than marginal. As to the Veteran's representative's contention that the Veteran's lower extremity radiculopathy was not considered in determining whether the Veteran was unemployable, the Board notes that the December 2012 rating determination assigned separate disability evaluations for each lower extremity radiculopathy, which, when combined with the increased evaluation for the Veteran's lumbosacral strain, increased his overall combined disability evaluation to 80 percent. Moreover, subsequent to the December 2012 rating determination, a supplemental statement of the case was issued in January 2013, which contemplated all of the Veteran's service-connected disabilities. In addition, the April 2012 VA orthopedic examiner described the Veteran's radiculopathy as mild, demonstrating that it was considered when the VA examiner rendered her opinion. As to the representative's contention that the Veteran should be afforded an additional VA examination so that all of the Veteran's disabilities could be addressed by one VA examiner, the Board notes that while several different opinions were obtained in conjunction with the Veteran's claim, the opinions obtained specifically addressed the impact of the Veteran's service-connected disabilities on his employability. As discussed above, because of the diverse nature of the Veteran's disabilities, separate examinations by examiners with the appropriate competencies was appropriate and the opinions provided are adequate and probative. As such, no further examination of the Veteran is warranted. As to the representative's argument that the examiner did not consider the positive aspects of the Veteran's claim with regard to unemployability as it related to his hearing loss, specifically the June 2007 letter from his employer, the Board notes that the examiner specifically reported that the entire claims folder had been reviewed prior to rendering the opinion, which the Board observes contained both the original and a duplicate copy of the employer's June 2007 letter. As to the representative's argument that the audiologist's reference to reasonable accommodations as specified in the Americans with Disabilities Act lends support to the Veteran's claim of unemployability, the Board notes that the VA examiner specifically indicated that the Veteran should not have any adverse complications to his functional or daily activities when wearing his hearing aids. Furthermore, the ADA provides specific guidelines which certain employers must follow in specific situations when it comes to reasonable accommodations. Regardless of the examiner's comments as it relates to the Americans with Disabilities Act, the examiner subsequently stated that employment would be feasible in a loosely supervised situations making no reference to the necessity for reasonable accommodations at that time. Finally, as to the Veteran's representative's argument that the April 2012 VA examiner's opinion that the Veteran was capable of sedentary work was conjecture, without specific rationale, and failed to provide evidence that the Veteran could perform work which would produce sufficient income other than to be marginal, the Board notes that the examiner performed a thorough examination upon the Veteran and reviewed the claims folder in its entirety prior to rendering her opinion. In addition, the examiner noted that the Veteran reported that the basis for leaving his prior employment was as a result of his hearing loss, with no reference to any orthopedic/neurological disabilities playing any role in the decision. The examiner also specifically described the impact of the Veteran's spine problems as increased back pain with any strenuous physical activities, as reported by the Veteran, prior to rendering her opinion that the Veteran was not unemployable as a result of his service-connected spine disorder. One of the Board's principal responsibilities is to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). While the Board has considered the Veteran's subjective reports that a TDIU is warranted, the objective medical evidence does not reveal clinical support for his contentions and provides highly probative evidence against this claim, outweighing the Veteran's statements. The Board does note that the VA audiologist has indicated that the Veteran's hearing loss would cause difficulty hearing speech, to include conversations on the telephone, without proper amplification, and that the Veteran's former employer indicated that he was let go from his prior employment as a result of his ability to communicate effectively and efficiently, being impaired by his loss of hearing to the degree that he could no longer perform the duties of his position. However, the VA audiologist, following a review of the claims folder, indicated that with proper amplification, the Veteran should not have any adverse complications to his functional or daily activities and that employment would be more than feasible in a loosely supervised situation. Moreover, the Board is placing greater probative weight upon the opinions rendered by the April and October 2012 VA examiners. Specifically, the Board is particularly persuaded to assign great probative weight to these medical opinions because the VA examiners had the entire claims file for review and provided rationale for the conclusions that was grounded in the evidence of record. The Board finds that the weight of the competent, credible and probative evidence, does not demonstrate that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. The Board has considered the Veteran's statements regarding his claim of TDIU and finds that they are outweighed by the competent and probative VA medical opinions. The record does indicate significant problems with the Veteran's service-connected disabilities, as evidenced by the combined 80 percent disability evaluation. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). A disability rating in itself is recognition that the impairment makes it difficult to obtain or retain employment, but the ultimate question regarding entitlement to TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. While the Veteran's service-connected disabilities resulted in occupational impairment, the sole fact that he is unemployed or has difficulty obtaining employment is not enough. The weight of evidence of record does not demonstrate that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful occupation and, thus, TDIU is not warranted. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 . ORDER Entitlement to a TDIU is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs