Citation Nr: 1315813 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-00 013A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) for the period through July 20, 2008. 2. Entitlement to a TDIU for the period beginning July 21, 2008. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September1965. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A TDIU was denied therein. The Veteran appealed this determination. In July 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In November 2009, the Board remanded this matter for additional development. The Board denied a TDIU in a July 2011 decision. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Memorandum Decision, the Court vacated the Board's decision. Entitlement to a TDIU thus was remanded (sent back) to the Board for action consistent with the Memorandum Decision. It once again is on appeal, in other words. It has been split into two issues of entitlement to a TDIU for the period through July 20, 2008, and for the period beginning July 21, 2008, at this time for the reasons specified herein. Additional pertinent evidence was submitted by an associate of the Veteran's representative in March 2013. Such evidence must be referred to the agency of original jurisdiction (AOJ), which in this case is the RO, for initial review unless either the right to such review is waived or the benefit to which the evidence relates may be fully allowed. 38 C.F.R. § 20.1304(c). Contemporaneous with submission of the additional pertinent evidence, the associate of the Veteran's representative waived initial RO consideration of it in a letter. The Board accordingly may review it in the first instance herein whether or not the benefit sought is granted. Based on review of the Veteran's claims file as well as his Virtual VA "eFolder," the following determination is made with respect to the issue of entitlement to a TDIU for the period beginning July 21, 2008. The issue of entitlement to a TDIU for the period through July 20, 2008, is addressed in the REMAND portion of the decision below. It thus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT As of July 21, 2008, the Veteran's service-connected disabilities have met the percent evaluation requirements for a TDIU and have been of sufficient severity to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU for the period beginning July 21, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159. Discussion of these duties is not necessary with respect to the issue of entitlement to a TDIU for the period beginning July 21, 2008, because this benefit is granted herein. It follows that any error committed regarding the aforementioned duties was harmless. Further, an associate of the Veteran's representative waived any notice errors in a March 2013 letter. II. TDIU Total disability means that there is present any 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, 4.15. A substantially gainful occupation is an occupation at which a livelihood is earned. VA Adjudication Procedure Manual, Part IV.ii.2.F.24.d. It thus is "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked. Faust v. West, 13 Vet. App. 342 (2000). It does not encompass positions of marginal employment where annual income does not exceed the poverty threshold for one person or where annual income exceeds this threshold because the employment is in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In determining whether a Veteran is unable to engage in a substantially gainful occupation., consideration may be given to level of education, special training, and previous work experience but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU is granted pursuant to the Schedule for Rating Disabilities when a Veteran is unable to secure or follow a substantially gainful occupation due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent. 38 C.F.R. § 4.16(a). However, the Veteran must meet specific percent evaluation requirements. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, as well as disabilities resulting from common etiology or a single accident, disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), multiple injuries incurred in action, and multiple disabilities incurred as a prisoner of war are considered as one disability with respect to the 60 percent and 40 percent requirements. The combined evaluation for service-connected disabilities is derived not by simply adding together their evaluations but by use of a combined ratings table. 38 C.F.R. § 4.25. Where the Veteran does not meet the percentage evaluation requirements, he still may be deemed totally disabled on an extraschedular basis if he is unemployable due to a service-connected disability or service-connected disabilities evaluated at less than 100 percent. 38 C.F.R. § 4.16(b). Referral to the Director of the Compensation and Pension (C & P) Service is required because VA, to include the Board, cannot assign a TDIU on an extraschedular basis in the first instance. Id.; Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash, 8 Vet. App. at 218; Stanton v. Brown, 5 Vet. App. 563 (1993); Fanning v. Brown, 4 Vet. App. 225 (1993). Here, the Veteran has been in receipt of a 10 percent evaluation for a right thumb scar, the post-operative residual of a laceration, since March 1992. He has been in receipt of a 10 percent evaluation for tinnitus since May 1995. A noncompensable evaluation for bilateral hearing loss also went into effect at that time, with an increase to 10 percent in October 2003 and to 20 percent on July 9, 2008. The November 1997 Board decision granting service connection for tinnitus and for bilateral hearing loss indicates that both are due to acoustic trauma during service. Given this common etiology, they shall be considered as one service-connected disability with an evaluation of 10 percent beginning in May 1995, 20 (rounded from 19) percent beginning in October 2003, and 30 (rounded from 28) percent as of July 9, 2008. A 30 percent evaluation for the Veteran's panic disorder finally went into effect in April 2002, with an increase to 50 percent on July 21, 2008. The Veteran filed for a TDIU in August 2005. There has been more than one-service connected disability since that time. It follows from the aforementioned that none were evaluated at 40 percent or more prior to July 21, 2008, when the evaluation for panic disorder increased to 50 percent. It also follows that the combined evaluation for all service-connected disabilities was 70 percent or more only as of July 21, 2008. The combined evaluation indeed was 50 percent as of August 2005. It increased to 60 (rounded from 56) percent on July 9, 2008, and again increased to 70 (rounded from 69) percent on July 21, 2008. As such, the percent evaluation requirements were not met for the period through July 20, 2008, but have been met since July 21, 2008. A TDIU thus may be awarded only on an extraschedular basis for the period through July 20, 2008, whereas it may be awarded on a schedular basis for the period beginning July 21, 2008. This former period is addressed below in the REMAND portion of this decision, as noted above. With respect to the latter period, the relevant inquiry is whether the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. The Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The competency and credibility of any lay evidence therefore must be assessed. See Layno v. Brown, 6. Vet. App. 465 (1994) (noted that competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. He thus prevails if the evidence supports a TDIU or is in relative equipoise but does not prevail when it is against a TDIU. Finally, only the most relevant evidence need be discussed even though all the evidence must be and thus has been reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA treatment records are silent for complaints on or after the aforementioned date from the Veteran regarding his right thumb scar. He has not otherwise complained about it during this timeframe. He made no complaints about it at a June 2010 VA scars examination, for example. With respect to tinnitus and bilateral hearing loss from July 21, 2008, to present, VA treatment records, a June 2010 VA audiological examination, and statements as well as testimony from the Veteran reveal his complaints of difficulty hearing to include understanding people. He specifically indicates missing a lot of what is said despite wearing hearing aids. With respect to panic disorder, VA treatment records, VA psychiatric examinations dated on July 21, 2008, and in June 2010, and statements as well as testimony from the Veteran reflect his complaints of panic attacks, sleep troubles, mood swings, crying spells, irritability, anger, little socialization, and relationship difficulties. His daughter L.H. indicated in a March 2011 statement that the Veteran cannot hear much over the telephone, has to ask for people to repeat what they say, and follows a set routine. She further indicated that he has missed appointments and gone to the wrong address because he misunderstood what he was told as well as becomes nervous and agitated when he deviates from his routine. VA treatment records dated just prior to July 21, 2008, document that the Veteran has a medical history inclusive of osteoarthrosis, low back pain, cervicalgia, chest wall pain, pain disorder, obesity, hypertension, esophageal reflux, colonic polyps, and tinea in addition to his service-connected disabilities. He testified that he has physical limitations due to some of these non-service-connected conditions. Finally, VA treatment records, the aforementioned VA psychiatric examinations, and statements and testimony from the Veteran make the following clear. He has at least a high school education. Some college was denoted, but only once. The Veteran has training in police work and in polygraphy. He indeed has been a police officer and a self-employed polygrapher as well as a gas station attendant, a manager, a self-employed general maintenance and repair man, and a private surveiller or investigator. He was a gas station attendant immediately following service. He left the police department after a number of years due to permanent partial disability of his neck, back, and shoulder incurred in the line of duty. He then was self-employed for a number of years because many employers perceived his disability to be a liability. The Veteran quit a position with a business service company in or around 1996 because of hearing loss. He last worked full-time as early as 1987 (the date also is reported as 2000 or 2001). He quit a part-time position with a security firm, which he did surveillance and investigations for from the late 1980's or early 1990's to as late as 2004 (the date also is reported as 1996), because he could not hear instructions to include over the radio, could not walk fast enough to keep up with people he was tailing, and could not sit or stand for long periods due to chronic pain. At no point since around the early to mid 2000's has the Veteran worked any job. The Board notes at this juncture that the Veteran and L.H. are lay persons because there is no indication either possesses a medical background. The Veteran is competent to report his symptoms and work history because they are within his personal experience. Layno, 6. Vet. App. at 465. L.H. is competent to report his symptoms and mannerisms because such is capable of observation. Id. Discounting of competent lay evidence may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for credibility consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). None of these factors is significant here. The Veteran concededly is self-interested and stands to gain financially, but his reports are plausible, consistent with each other, and generally consistent with the other lay evidence from L.H. as well as the medical evidence. His demeanor before the undersigned appeared to convey truthfulness. The report of L.H. is plausible and consistent with the other lay evidence from the Veteran as well as the medical evidence. She further is not self-interested and does not stand to gain financially. In sum, there is no reason to doubt the Veteran or L.H. Their credibility therefore is conceded. The examiner who conducted the June 2010 VA scars examination opined that the Veteran's right thumb scar "does not hinder[] his employment options and opportunities in any way." The examiner who conducted the June 2010 VA audiological examination opined that the Veteran's tinnitus and bilateral hearing loss do not "preclude him from gainful employment," although they do preclude employment "in an occupation that requires acute hearing." He was found by the Ohio Industrial Commission to be capable of sedentary work despite many cervical and lumbosacral spine conditions, since they resulted in only a 17 percent whole person impairment. He testified that his panic disorder is the primary reason he cannot work. The examiner who conducted the July 21, 2008, VA psychiatric examination indicated that this disorder impacted the Veteran's occupational functioning to a mild to moderate degree over the years. It was noted that his retirement "appears to have been based on his physical limitations, most notably his chronic pain[,] rather than" on his panic disorder. The examiner who conducted the June 2010 psychiatric examination indicated that the Veteran "has a number of physical limitations resulting from his police force injuries" which adversely affect his employment. It was noted that he consistently had identified such limitations and not panic disorder as the reason he quit his last position of employment. Finally, it was opined that his panic disorder would cause a moderate degree of difficulty interacting socially at work, adapting to stressful work situations, and "with occupational productivity, reliability, efficiency, and ... performance" as well as an occasional missed day from work. In its July 2012 Memorandum Decision, the aforementioned June 2010 VA examinations were deemed insufficient by the Court. The Court specifically noted that the Board's November 2009 remand contained a directive for an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities combine to preclude substantially gainful employment. Caselaw was cited for the propositions that VA has a duty to ensure substantial, rather than strict, compliance with a remand. Stegall v. West, 11 Vet. App. 268 (1999); Dyment v. West, 13 Vet. App. 141 (1999); Missouri Veterans Comm'n v. Peake, 22 Vet. App. 123 (2008). The Court determined that there was not even substantial compliance here. As such, the Court directed the Board to arrange for a medical professional or vocational expert to perform a new VA examination of the Veteran that describes the cumulative effects, if any, of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The Board has no discretion and must comply with a Court order to direct additional development. Forcier v. Nicholson, 19 Vet. App. 414 (2006). Acknowledgement is given to the fact that no such arrangements have been made with respect to the period beginning July 21, 2008. Yet none shall be made because doing so is unnecessary. D.P., a private vocational expert, provided the required description in February 2013 at the Veteran's request. Specifically, D.P. noted the Veteran's report of only some limitation in the ability to pinch as a result of his right thumb scar. A progressing level of impairment attributable to a steady decline in his ability to hear and worsening panic disorder symptoms also was noted. D.P. opined that it is at least as likely as not that the Veteran's service-connected tinnitus, bilateral hearing loss, and panic disorder in combination have prevented him from securing and following a substantially gainful occupation since at least July 2008. Given the above, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation during the period beginning July 21, 2008. He has not worked in this period. His service-connected right thumb scar has been very little to no impediment to him working in this period. Indeed, it essentially has been asymptomatic and was found to cause only some limitation in the ability to pinch. The Veteran's service-connected tinnitus, bilateral hearing loss, and panic disorder, however, have been insurmountable impediments to him securing or following a substantially gainful occupation in the aforementioned period. The Veteran has been suited best for entry level or near entry level jobs given his education background and subsequent training only in specialized fields. He has been suited best for jobs that are at least somewhat physical in nature and that involve interaction with others given his prior employment history. Jobs that are entry level or near entry level and jobs that are at least somewhat physical in nature have not been problematic notwithstanding his tinnitus, bilateral hearing loss, and panic disorder. Yet jobs that involve interaction with others have been extremely problematic. Communicating with the Veteran has been difficult since he has trouble hearing and understanding others due to his tinnitus and bilateral hearing loss. Any type of relationship, to include a working relationship, with him has been difficult since he has panic attacks and a host of mood and temper problems as well as inflexibility with respect to his routine due to his panic disorder. While the tinnitus and bilateral hearing loss alone have and the panic disorder alone has not been found so problematic as to preclude substantially gainful employment, what matters is how problematic they have been combined. They together have been found so problematic as to preclude substantially gainful employment. Of import, the Veteran has many non-service-connected conditions. Physical limitations as a result of them have been noted in particular. It repeatedly has been found that they have interfered with his ability to work significantly, to the point of precluding some employment, in the past. They accordingly very likely continued to interfere with his ability to work significantly, perhaps to the point of precluding substantially gainful employment, during the period beginning July 21, 2008. However, such interference cannot be considered. This in no way alters the above determination that the Veteran's service-connected disabilities, particularly his tinnitus, bilateral hearing loss, and panic disorder, have been productive of the required unemployability. That the Veteran has been incapable of securing or following a substantially gainful occupation as a result of his service-connected disabilities, when considered alone, and also perhaps has been incapable of securing or following a substantially gainful occupation as a result of non-service-connected conditions, when considered alone, indeed is possible. In other words, he perhaps has been incapable of substantially gainful employment due to his non-service-connected conditions but even factored them out he has been incapable of substantially gainful employment due to his service-connected disabilities. The preponderance of the evidence, in sum, is for an award of a TDIU on a schedular basis for the period beginning July 21, 2008. Accordingly, this benefit is granted without the necessity of invoking the benefit of the doubt. ORDER A TDIU for the period beginning July 21, 2008, is granted, subject to the laws and regulations governing monetary awards. (CONTINUED ON NEXT PAGE) REMAND Although the Board sincerely regrets the delay of a remand, adjudication of the Veteran's entitlement to a TDIU for the period through July 20, 2008, cannot be undertaken as of yet. More development is needed. This development is necessary to ensure that the Veteran is afforded every possible consideration. It is reiterated from above that a TDIU may be awarded only on an extraschedular basis for the period through July 20, 2008. With respect to this period, the relevant inquiry is whether the Veteran's service-connected disabilities rendered him unemployable. Reiterated in this regard from above is that the Court has directed the Board to ensure compliance with its November 2009 remand by arranging for a medical professional or vocational expert to perform a new VA examination of the Veteran that describes the cumulative effects, if any, of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. Finally reiterated is the above determination that no such arrangements were needed with respect to the period beginning July 21, 2008, because D.P. already had provided the required description. The same cannot be said with respect to the period prior to this date. D.P. opined, after noting the Veteran's progressing level of impairment, that his service-connected tinnitus, bilateral hearing loss, and panic disorder in combination potentially have prevented him from securing and following a substantially gainful occupation as far back as 2006. Use of the word potentially indicates that the opinion does not rise to the level of certainty required. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bostain v. West, 11 Vet. App. 124 (1998); Goss v. Brown, 9 Vet. App. 109 (1996); Warren v. Brown, 6 Vet. App. 4 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (collectively holding that language such as "it is possible," "it is within the realm of medical possibility," "could not rule out," "could have been," "may or may not," "may have," and similar generic statements are insufficient). As such, the Board must comply with the Court's order to direct additional development. The Board finds, since VA examinations performed by medical professionals are already of record, that a VA examination performed by a vocational expert will provide the most valuable information. Given the above, a REMAND is directed for the following: 1. Undertake any necessary records development. This shall include making as many requests as necessary to obtain updated VA treatment records regarding the Veteran. This also shall include making an initial request and any necessary follow-up requests for any pertinent private treatment records regarding the Veteran identified by him on remand and for which he provides authorization for their release rather than submitting them on his own behalf. 2. After completion of all necessary records development, arrange for the Veteran to undergo a VA vocational examination regarding a TDIU for the period through July 20, 2008. The examiner shall be an individual with appropriate vocational expertise. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. The examiner then shall interview the Veteran. Any tests, studies, or evaluations deemed necessary next shall be performed. Finally, the examiner shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disabilities in combination (but without consideration of non-service-connected conditions or age) were of sufficient severity that he was unemployable for the period (from around August 2005 when the Veteran filed for a TDIU) through July 20, 2008. A clear and complete rationale (explanation), including a discussion of any pertinent vocational principles, with a citation for any literature referenced, as well as the pertinent medical evidence and lay evidence, shall be provided for the opinion. If an opinion cannot be provided without resort to mere speculation, a complete and clear rationale for why this is so shall be provided. In so doing, it specifically shall be indicated whether or not the inability to render the opinion is because more information is needed, because the limits of current vocational knowledge have been exhausted, or because of some other reason. Each of the above actions shall be documented fully in a report. A copy of such report shall be placed in the claims file or "eFolder." 3. Lastly, readjudicate the Veteran's entitlement to a TDIU for the period through July 20, 2008. This shall include, since this benefit can only be awarded on an extraschedular basis, consideration of whether or not referral should be made to the Director of the C & P Service. If it is determined that a TDIU is not warranted, whether referral was made or not, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that failure to report for any scheduled examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument on the issue that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law indeed requires that all matters remanded by the Board or by the Court for additional development or other appropriate action be handled promptly. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs