Citation Nr: 1315894	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  10-29 022	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a rating in excess of 60 percent prior to February 4, 2013 for bilateral hearing loss.

2.  Entitlement to a rating in excess of 70 percent on and after February 4, 2013 for bilateral hearing loss.

3.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his Spouse

ATTORNEY FOR THE BOARD

S. Pflugner, Counsel


INTRODUCTION

The Veteran served on active duty from April 1944 to June 1946. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO).

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).

The issue of entitlement to a total rating based on individual unemployability (TDIU) will be addressed in the REMAND portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  Prior to February 4, 2013, the Veteran's bilateral hearing loss was manifested by audiometric test results corresponding to a numeric designation of Level XI for his left ear and Level VII for his right ear.

2.  On and after February 4, 2013, the Veteran's bilateral hearing loss was manifested by audiometric test results corresponding to a numeric designation of Level XI for his left ear and Level VIII for his right ear.



CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 60 percent prior to February 4, 2013 for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 

2.  The criteria for a rating in excess of 70 percent on and after February 4, 2013 for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 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 notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With respect to the Veteran's claims for ratings in excess of those already assigned to his service-connected bilateral hearing loss, the letters provided to the Veteran throughout the pendency of this appeal did not satisfy the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  However, the Board finds that the Veteran was not prejudiced by this notice defect.  In this regard, the Board finds that the record reflects that the Veteran had actual knowledge of the information and evidence necessary to substantiate his claim.  Specifically, the Veteran was provided notice of the criteria for establishing a higher rating for bilateral hearing loss via the February 2010 statement of the case.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009).  Further, the Veteran demonstrated actual knowledge of the requirements to obtain a higher rating through his testimony at the October 2011 Board hearing.  Following the October 2011 hearing, the Veteran's claims were re-adjudicated in a March 2013 supplemental statement of the case.  See generally Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Despite VA's failure to satisfy the notice provisions with respect to the increased rating claims for bilateral hearing loss, this error was harmless as the Veteran was provided constructive notice and was provided the opportunity to participate in the processing of these claims, including testifying at a hearing.  Thus, the Board finds that the purpose behind the notice requirements has been satisfied.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  Further, in the circumstances of this case, additional efforts to notify the Veteran at this point would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Again, VA's errors were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced by proceeding on the merits herein.

The duty to assist the Veteran has been satisfied in this case.  The RO has obtained the Veteran's service treatment records and his VA treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Moreover, there was no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.

The Veteran underwent an adequate VA audiological examination in March 2009 and in February 2013 in order to ascertain the severity of his service-connected bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The examiners reviewed the Veteran's claims file, treatment records, and administered thorough audiological examinations, which allowed for fully-informed evaluations of the claimed disability.  The Board also considered whether the VA audiologist described the functional effects of a hearing loss disability in the examination report.  Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  The Veteran provided statements and the examiners provided opinions as to the functional effects of the Veteran's bilateral hearing loss.  If the VA examinations were deficient in terms of the functional effects of the Veteran's bilateral hearing loss, the Veteran must demonstrate prejudice due to any such deficiency.  Id.  The Veteran has not advanced contentions that the VA examinations were deficient in any respect or that he was prejudiced thereby. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 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); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the Veteran was assisted at the hearing by an accredited representative from the Tennessee Department of Veterans' Affairs.  The representative and the Veterans Law Judge asked questions to ascertain the severity of the Veteran's bilateral hearing loss.  No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Historically, the Veteran served on active duty from April 1944 to June 1946.  In February 2009, the Veteran filed a claim of entitlement to TDIU, which was also accepted by the RO as a claim of entitlement to a rating in excess of 60 percent for bilateral hearing loss.  After these claims were denied in a June 2009 rating decision, the Veteran perfected an appeal to the Board.  In December 2011, the Board remanded the Veteran's claims for further development.  Specifically, in regard to the Veteran's increased rating claim for bilateral hearing loss, the Board directed the RO to issue the Veteran notice compliant with 38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Additionally, the Board directed the RO to afford the Veteran a VA audiological examination in order to ascertain the severity of his bilateral hearing loss.  Thereafter, the RO was to readjudicate the Veteran's claims and, if any benefit remained denied, issue a supplemental statement of the case before remitting the claims to the Board.

In November 2012, the RO issued the Veteran a notice letter that erroneously considered the bilateral hearing loss claim as one for service connection, rather than an increased rating, although it made a general reference to what evidence must show for an increased evaluation.  Although this notice letter was inadequate with respect to the Veteran's increased rating claim for bilateral hearing loss, as discussed above, VA's failure to satisfy the notice provisions constituted harmless error as the record otherwise reflected that the Veteran had actual notice and knowledge of the relevant regulations and rating criteria, and an adequate opportunity to participate effectively in the processing of this claim.  Given this, the Board finds that there was substantial compliance with respect the December 2011 remand directive regarding notice.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Soyini, 1 Vet. App. at 546.  

The Veteran was scheduled for and underwent an adequate VA audiological examination on February 4, 2013, in order to ascertain the severity of his bilateral hearing loss.  As such, the Board finds that the RO substantially complied with this aspect of the December 2011 remand and, thus, an additional remand for corrective action is not required.  Id.

Based on the findings from the February 4, 2013 VA examination, in a February 2013 rating decision, the RO increased the rating assigned to the Veteran's service-connected bilateral hearing loss from 60 percent to 70 percent, effective February 4, 2013.  As the increased rating for bilateral hearing loss did not constitute a full grant of benefits sought on appeal, the RO issued a supplemental statement of the case to the Veteran before remitting the claims to the Board for further appellate review.  AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  The Board will now address the merits of the Veteran's claims as adjusted to reflect the February 2013 rating decision.

I.  Bilateral Hearing Loss

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  Staged ratings are appropriate whenever the factual findings show distinct periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating.  38 C.F.R. § 4.21 (2012).  Therefore, with respect to the claim at issue herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The severity of hearing loss is determined by comparing audiometric test results with the specific criteria set forth in the Rating Schedule.  See 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110 (2012).  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing.  The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids.


A.  Prior to February 4, 2013

In his February 2009 claim, the Veteran asserted that he was nervous and that his hearing prevented him from operating machinery, presumable for safety reasons, and, thus, he was forced to quit working.  The Veteran reiterated this assertion in a March 2009 statement.  In a separate March 2009 statement, the Veteran asserted that he had to quit from his dairy and hog farm operation due to the severity of his hearing loss.  He stated that it was too dangerous for him to continue working in such capacity.

In March 2009, the Veteran underwent a VA audiological examination in order to ascertain the severity of his service-connected bilateral hearing loss.  During the examination, the Veteran endorsed poor social interactions, difficulty following instructions, and difficulty hearing.  After reviewing the Veteran's relevant medical history, the examiner administered audiometric testing that demonstrated relevant puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
LEFT
105+
95
100
105
RIGHT
75
80
75
85

The examiner determined that the Veteran's average left ear puretone was 101.25, while his average right ear puretone threshold was 78.75.  On speech recognition testing using the Maryland CNC word list, the Veteran scored zero percent on his left ear, and 64 percent on his right ear.  The diagnosis was profound mixed hearing loss in the left ear, and moderate to profound sensorineural hearing loss (but a mixed component could not be ruled out) in the right ear.  The examiner then discussed the Veteran's employability, which will be considered here to the extent it relates to the functional effects of his bilateral hearing loss.

In July 2009, the Veteran submitted a statement wherein he echoed his previous statements that it was too dangerous for him to work due to the severity of his bilateral hearing loss.

In October 2011, the Veteran testified at a Board hearing as to why he felt he was unable to continue working as a dairy and pig farmer.  He also testified as to his education and training background.  The Veteran and his spouse both stated that he did not attend social events.  They both testified that she would become irritated due to the need to repeat things to him.  Further, the Veteran explained that he needed to turn the volume up on the radio and television to "window-shaking" levels in order to understand it.  The hearing then focused on the Veteran's employability.

Applying the March 2009 results to the Rating Schedule revealed numeric designations of Level XI for his left ear, and Level VII for his right ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 60 percent rating for bilateral hearing loss.

The rating criteria provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  The Veteran's audiological test results demonstrated a puretone threshold of 55 decibels or more in all four frequencies (1000, 2000, 3000, and 4000 Hertz) in his right and left ear.  As such, evaluation under 38 C.F.R. § 4.86(a) is warranted.  According to 38 C.F.R. § 4.86(a), the Roman numeral designation assigned to each ear will be from Table VI or Table VIa, whichever results in the higher numeral.  The designations assigned via application of Table VI were discussed above and will not be repeated here.  Application of Table VIa to the results of the March 2009 VA examination yielded the same Roman numeral designations of XI for the Veteran's left ear and VII for his right ear.  As such, a rating in excess of 60 percent for the Veteran's service-connected bilateral hearing loss is not warranted under 38 C.F.R. § 4.86(a).

Additionally, with respect to exceptional patterns of hearing loss, although the evidence of record demonstrated puretone thresholds of 70 decibels or more at 2000 Hertz in both ears, the evidence did not show puretone thresholds of 30 decibels or less at 1000 Hertz, bilaterally.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.

The evidence of record did not include other audiometric evaluation results dated prior to February 4, 2013.

Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Thus, based on the audiometric findings of record, a rating in excess of 60 percent prior to February 4, 2013 for bilateral hearing loss is not warranted. 

B.  On and After February 4, 2013

On February 4, 2013, the Veteran underwent another VA audiological examination in order to ascertain the severity of his service-connected bilateral hearing loss.  During the examination, the Veteran endorsed difficulty with understanding speech.  After briefly reviewing the Veteran's relevant medical history, the examiner administered audiometric testing that demonstrated relevant puretone thresholds, in decibels, as follows:



HERTZ



1000
2000
3000
4000
LEFT
105+
100
100
105
RIGHT
85
85
80
85

The examiner determined that the Veteran's average left ear puretone was 102, while his average right ear puretone threshold was 84.  On speech recognition testing using the Maryland CNC word list, the Veteran scored a 32 percent on his left ear, and a 58 percent on his right ear.  The diagnosis was bilateral sensorineural hearing loss, profound in the left ear, and serve to profound in the right ear.  With respect to the functional impact, the Veteran stated that he could not understand "anything," talk on the telephone, or communicate with people.

The Board notes that the correct calculation of the Veteran's left ear average puretone threshold was 102.5 which, when rounded to the nearest whole number, is 103.  

The evidence of record did not include other audiometric evaluation results dated on or after February 4, 2013.

Applying the February 4, 2013 results to the Rating Schedule revealed numeric designations of Level XI for his left ear, and Level VIII for his right ear.  See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100.  Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 70 percent rating for bilateral hearing loss.

The rating criteria provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  The Veteran's audiological test results demonstrated a puretone threshold of 55 decibels or more in all four frequencies (1000, 2000, 3000, and 4000 Hertz) in his right and left ear.  As such, evaluation under 38 C.F.R. § 4.86(a) is warranted.  According to 38 C.F.R. § 4.86(a), the Roman numeral designation assigned to each ear will be from Table VI or Table VIa, whichever results in the higher numeral.  The designations assigned via application of Table VI were discussed above.  Application of Table VIa to the results of the February 4, 2013 VA examination yielded the Roman numeral designation of X for the Veteran's left ear, and the same Roman numeral designation of VIII for his right ear.  As such, a rating in excess of 70 percent for the Veteran's service-connected bilateral hearing loss is not warranted pursuant to 38 C.F.R. § 4.86(a).

Additionally, with respect to exceptional patterns of hearing loss, the evidence of record did not demonstrate puretone thresholds of 30 decibels or less at 1000 Hertz, bilaterally, although the evidence did show puretone thresholds of 70 decibels or more at 2000 Hertz in either ear.  Thus, the Veteran is not entitled to additional consideration under C.F.R. § 4.86(b) for exceptional patterns of hearing impairment for his service-connected bilateral hearing loss.

Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, 3 Vet. App. at 349.  Thus, based on the audiometric findings of record, a rating in excess of 70 percent on and after February 4, 2013 for bilateral hearing loss is not warranted. 

C.  Extraschedular

Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. 
§§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates then the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned ratings inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated as an impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability.  Id.  

When applying the results of the relevant audiological examinations to the tables set forth in the regulations, the Veteran's service-connected bilateral hearing loss was assigned numeric designations of Level XI for his left ear and Level VII and VIII for his right ear.  During the March 2009 and /or February 4, 2013 VA audiological examinations, the Veteran reported that he did not attend social events, required the television and radio at high volumes, was unable to work due to the danger presented by his hearing loss, and had difficulty with communicating with people, both in person and telephonically.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by the 60 and 70 percent ratings already assigned before and after February 4, 2013, respectively.  Ratings in excess of those already assigned are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present during before or after February 4, 2013.  The criteria for the 60 and 70 percent ratings reasonably describe the Veteran's disability level and symptomatology.  Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a higher evaluation to the Veteran's bilateral hearing loss, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A rating in excess of 60 percent prior to February 4, 2013 for bilateral hearing loss is denied.

A rating in excess of 70 percent on and after February 4, 2013 for bilateral hearing loss is denied.


REMAND

Generally, VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU benefits are 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).  The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable.  38 C.F.R. § 4.16(a).  In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran was provided two VA examinations pursuant to his claim of entitlement to TDIU; the first in March 2009, the second on February 4, 2013.  There was no indication that either of the examiners discussed or considered the Veteran's level of education, special training, or previous work experience in rendering the determination as to his employability.  In this regard, the Board notes that in his formal application for TDIU, received in March 2009, the Veteran reported that he had completed the 7th grade, and had had occupational experience as a dairy cow and hog farmer.  As such, the Board finds that the March 2009 and February 4, 2013 VA examinations are inadequate insofar as they pertain to the Veteran's claim of entitlement to TDIU.  

"Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."  See Barr, 21 Vet. App. at 311.  Consequently, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order to obtain a supplemental opinion.  

Accordingly, the case is remanded for the following action:

1.  The RO must make the Veteran's claims file available to the VA examiner that conducted the February 4, 2013 VA examination, or an appropriate substitute.  After a review of the entire evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) the Veteran is unable to obtain and retain employment consistent with his 7th grade education, and occupational experience as a dairy cow and hog farmer, due to all of his service-connected disabilities, CONSIDERED IN COMBINATION, irrespective of age and any nonservice-connected disorders.  In so doing, the examiner must specifically discuss the Veteran's educational and occupational background.

At present service-connection has been granted for bilateral hearing loss, rated as 60 percent disabling prior to February 4, 2013, and 70 percent disabling thereafter.  Service connection is also in effect for tinnitus, which has been assigned a 10 percent disability rating.  

A complete rationale for any opinion must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

2. Once the above action has been completed, the RO must re-adjudicate the Veteran's TDIU claim on appeal, taking into consideration any newly acquired evidence.  If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs