Citation Nr: 1316372 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-30 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In pertinent part, this decision denied the Veteran's claim seeking a TDIU. The Board remanded this issue in September 2012 and January 2013 so that additional development of the evidence could be conducted. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remands was to arrange for the Veteran to undergo an appropriate VA examination. The examination scheduled pursuant to the Board's January 2013 remand occurred in March 2013. After review of the complete evidentiary record, the Board has determined that compliance has now occurred with the Board's orders in the above-cited January 2013 remand and that the Board may now proceed with adjudication of the claim. As part of a May 2013 Informal Hearing Presentation the Veteran's accredited representative raised the issue of whether clear and unmistakable error (CUE) exists in a January 1947 rating decision of the RO, which addressed the assignment of disability ratings for multiple shell fragment wounds. While this matter has been raised by the record, it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. The Veteran is service-connected for bilateral hearing loss, rated as 40 percent disabling; skull fracture residuals, rated as 30 percent disabling; left tibia scars, rated as 10 percent disabling; right foot scars, rated as 10 percent disability; tinnitus, rated as 10 percent disabling; facial scars, rated as 10 percent disabling; and right forearm scars, rated noncompensably disabling. The disabilities result in a combined disability rating of 70 percent. 2. The credible lay and medical evidence does not show that the Veteran's service-connected disabilities have prevented him from securing and obtaining substantially gainful employment for any time during the appeal period. CONCLUSION OF LAW The criteria for the assignment of a TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification in November 2009, prior to the initial unfavorable agency decision which was issued in December 2009. The November 2009 notice letter, from the RO, advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. The November 2009 letter also provided notice regarding the assignment of disability ratings and effective dates as required by Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file, as are all available post-service treatment records. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded several VA medical examinations in the course of his appeal, most recently in March 2013. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The VA examinations on file, in being contemplated collectively, are adequate for the purposes of determining entitlement to TDIU, as they involved a review of the Veteran's pertinent history (the respective examiners reviewed this information) and a physical examination of the Veteran. The VA examinations also now all include opinions with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The United States Court of Appeals for the Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow 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 to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). When considering whether the veteran's disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "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." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a) (2012). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): The question of whether there is an inability to engage in substantial gainful activity 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. See Moore, 1 Vet. App. at 359 . A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question 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 v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19 (2012). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr; Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer). As reflected in Fed. R. Evid. 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed. R. Evid. 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education. The Board observes that the Veteran is eligible to receive TDIU benefits as he is service connected for bilateral hearing loss, rated as 40 percent disabling; skull fracture residuals, rated as 30 percent disabling; left tibia scars, rated as 10 percent disabling; right foot scars, rated as 10 percent disability; tinnitus, rated as 10 percent disabling; facial scars, rated as 10 percent disabling; and right forearm scars, rated noncompensably disabling. The disabilities result in a combined disability rating of 70 percent. 38 C.F.R. § 4.25 (2012). Considering his total disability rating is 70 percent, and his bilateral hearing loss is rated as 40 percent disabling, the Veteran is eligible to receive TDIU benefits. See 38 C.F.R. § 4.16 (2012). As the Veteran meets the percentage threshold requirements, the remaining inquiry is whether he is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities. On his August 2009 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he became too disabled to work in 1981. He noted that he last worked as a postal worker, with this employment beginning in 1949. The Veteran reported completing high school. The Veteran was afforded a VA traumatic brain injury examination in September 2009. The Veteran reported only rare mild headaches, poor balance issues for 20 years, painful left foot toes, and numbness and paresthesias in hands and feet due to peripheral neuropathy. The Veteran reported that his peripheral neuropathy required him to use a walker for balance issues. The Veteran denied any psychiatric or cognitive problems other than mild anxiety. Upon examination it was noted that the Veteran had abnormal reflex responses and decreased sensation in his upper and lower extremities. The Veteran reported being retired after 32 years of employment as a mail carrier. The examiner noted that most of the Veteran's current physical problems were mostly due to his peripheral neuropathy, which is not service connected. The Veteran was also afforded a VA audio examination in July 2009 in which he reported difficulty hearing speech in noisy environments as well as hearing women's voices. The Veteran further reported recurrent but not constant tinnitus. The Veteran was diagnosed with mild to profound hearing loss in the right ear and mild to severe hearing loss in the left ear. There was no opinion with regard to whether the Veteran's hearing loss affected his employability. Pursuant to the Board's September 2012 remand instructions, the Veteran was afforded a VA examination in November 2012. Review of the "DBQ" (Disability Benefits Questionnaire) report, shows that the VA examiner, after reviewing the Veteran's claims folder and examining the Veteran, observed that several nonservice-connected disorders (peripheral neuropathy, myasthenia gravis, and obstructive sleep apnea) had, in essence, an adverse affect on the Veteran's ability to perform "physical occupational activity." The examining physician also opined that "it is less likely as not that the [V]eteran's bone and scar service-connected disabilities render him unable to secure or follow a substantially gainful occupation." The examiner also observed that while the Veteran's service-connected forehead scar resulted in sensitivity, he was able to compensate for this over his rural mail carrier which encompassed more than 30 years. He added that the Veteran could protect this area when outdoors in a windy environment. While again observing that the Veteran is also service-connected for bilateral hearing loss and tinnitus, the examiner also commented, in part, that "[t]here are no other effects on physical or sedentary employment due to his combined service connected condition other than as documented in audiology C&P exam regarding the hearing...." To this, the Board observed in January 2013, as it had done previously in September 2012, that the previously afforded VA audio examination, conducted in July 2009, did not include an opinion with regard to whether the Veteran's hearing loss affected his employability. As such, the Board determined in January 2013 that this opinion did not adequately respond to the questions posed in the September 2012 remand. The Veteran's bilateral hearing loss is service-connected, and, in fact, is currently now evaluated as 40 percent disabling, more than the disability evaluation assigned to his service-connected compound fracture with defects of skull forehead. Because the physician did not address the Veteran's bilateral hearing loss (or tinnitus), the medical question concerning whether the Veteran's service-connected disabilities result in his being unemployed has not been satisfactorily answered. Therefore, the Board found in January 2013 that the development ordered by the Board in September 2012 was not sufficiently accomplished. Stegall. Following the Board's January 2013 remand, the Veteran was afforded additional VA examinations in March 2013. In pertinent part, the report of a VA audio examination dated at that time shows that the diagnoses included bilateral sensorineural hearing loss (with poor discrimination scores) and tinnitus. The examining audiologist opined that with proper amplification and reasonable accommodations as specified in the Americans with Disabilities Act the Veteran's hearing loss alone should "not significantly affect vocational potential. Employment would be feasible if requiring little interaction with the public." Concerning the Veteran's diagnosed tinnitus, the examiner opined that it did not impact ordinary conditions of daily life, "to include [the] ability to work." As noted above, the Veteran's service-connected disabilities meet the schedular criteria for a TDIU rating (i.e. that a veteran must have one service-connected disability rated at 60 percent or higher or two or more service-connected disabilities, with one disability rated at 40 percent or higher, with a combined rating of 70 percent or higher) under the provisions of 38 C.F.R. § 4.16(a). Despite the Veteran's eligibility for TDIU benefits, the Board concludes that the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities, disregarding his nonservice-connected disabilities or previous unemployability, do not render him unable to secure or follow a substantially gainful occupation. The Board first observes that it has reviewed the record in great detail. Concerning the medical evidence on file, the Board notes that the medical findings/opinions set out as part of the above-discussed November 2012 and March 2013 VA examinations, in essence, indicate that the Veteran's service-connected disabilities together do not result in the Veteran being unable to obtain and retain substantially gainful employment. Rather, the VA physician who conducted the November 2012 examination opined that it was "less likely as not" that the Veteran's service-connected bone and scar disabilities rendered him unable to secure or follow a substantially gainful occupation. Instead, he determined that the Veteran's nonservice-connected peripheral neuropathy prevent him from performing a "physical" job, and that his nonservice-connected obstructive sleep apnea prevented him from doing a job which required normal levels of alertness throughout the duration of the work day. Further, as noted, the VA audiologist in March 2013 found that neither the Veteran's bilateral hearing loss nor tinnitus, in essence, produced unemployability. Hatlestad. There is no competent lay evidence or medical evidence of record indicating that the Veteran would be precluded from employment as a result of his service-connected disabilities alone. The Board finds the record does not demonstrate that the Veteran's service-connected disabilities alone, without consideration of his nonservice-connected disabilities, are of such severity as to solely preclude his participation in all forms of substantially gainful employment. Although the Veteran's service-connected disabilities meet the schedular criteria for disability percentages for a TDIU under the provisions of 38 C.F.R. § 4.16(a), the evidence fails to show that these disabilities, disregarding his nonservice-connected disabilities, render him unemployable, the second criteria for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities under the provisions of 38 C.F.R. § 4.16(a) is not warranted. The Board also finds that the record does not present any unusual factors that might serve as a predicate for a finding of unemployability. The Veteran's service-connected disabilities have not been, in the Board's determination, so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs