Citation Nr: 1316801 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 06-03 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Paul Sorisio, Counsel INTRODUCTION The Veteran served on active duty from March 1946 to January 1948 and from January 1951 to April 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issue on appeal was previously before the Board in September 2009 at which time it was remanded for additional development. Subsequently, in an April 2010 decision, the Board denied entitlement to a TDIU. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 Order, the Court granted a February 2011 Joint Motion, vacating and remanding the issue to the Board for action consistent with the Joint Motion. In April 2011 and October 2012, the Board again remanded this matter for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(1) (2012) due to the Veteran's advanced age. 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection is in effect for bilateral hearing loss, currently rated as 40 percent disabling; tinnitus, currently rated as 10 percent disabling; residuals of cold injury to the upper right extremity, currently rated as 10 percent disabling; residuals of cold injury to the upper left extremity, currently rated as 10 percent disabling; residuals of cold injury to the lower right extremity, currently rated as 10 percent disabling; and residuals of cold injury to the lower left extremity, currently rated as 10 percent disabling. The Veteran's combined rating for his service-connected disabilities is 70 percent, effective May 28, 2004. 2. The Veteran's service-connected disabilities are not shown to be of such severity so as to preclude the ability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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). The VCAA applies to the instant matter. VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, prior to the April 2005 rating decision, VA sent the Veteran a notice letter in February 2005 that apprised him as to his and VA's respective duties for obtaining evidence. This notice letter also informed him that in order to substantiate his claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening in the severity of his condition. The February 2005 notice letter also informed the Veteran of the minimum disability percentages required for entitlement to TDIU, it also provided the Veteran with examples of the types of medical and lay evidence that the claimant may submit. An October 2009 notice letter informed the Veteran how VA determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the October 2009 notice was sent after the initial adjudication, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the October 2009 letter complied with the requirements of Dingess/Hartman. Thereafter, a supplemental statement of the case readjudicated the claim in December 2009 and most recently in February 2013. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In light of the above, the Board finds that all notices required by the VCAA and implementing regulations were furnished to the Veteran. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has associated with the claims folders the Veteran's private and VA treatment records. The Veteran has completed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, describing his occupational and educational history. Additionally, VA has received a VA Form 21-4192, Request for Information in Connection with Claim for Disability Benefits, from one of the Veteran's employers. The Board notes that it has remanded this appeal on several occasions in September 2009, April 2011, and October 2012. The remands have directed that the Veteran be provided VA examinations that address whether it is at least as likely as not that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities, either alone or in combination. Most recently, the appeal was remanded to have the Veteran undergo a social and industrial survey (survey) to ascertain the impact of his service-connected conditions, including his hearing loss, on his ability to engage in substantially gainful employment in light of his work history and level of education, and suggest types of employment, if feasible. The record shows that the Veteran has been provided formal VA examinations in October 2009 as well as being afforded an audiological examination and a cold injury examination in November 2009. The February 2011 Joint Motion stated that a November 2009 VA audiological examination report failed to comply with the September 2009 Board remand because it did not answer the question of whether the Veteran's service-connected hearing loss prevented him from substantially gainful employment and the VA audiological examiner did not suggest the types of employment the Veteran could obtain given his educational background and employment history. The report, however, may still hold some probative value with regard to the TDIU matter at issue. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report "must be read as a whole"). After the October 2012 Board remand, the Veteran underwent a survey and a VA audiological examination in December 2012. In particular, the 2012 survey report discussed the types of employment in which the Veteran would be capable of engaging, considering the effects of his service-connected disabilities. In light of a full review of these reports, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (conferring on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) (finding that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). The Veteran was afforded several VA examinations during the course of this appeal, most recently in December 2012, to address the questions raised by the case. The Board finds that the VA examinations, particularly the December 2012 examination and survey, are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, including his lay assertions and his current complaints, and because they sufficiently inform the Board of the examiners' judgment. See Monzingo, 26 Vet. App. at 105-06 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Based upon the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of this matter. TDIU Total disability will be considered to exist where there is 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 (2012). Total disability ratings 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, the disability shall be ratable at 60 percent or more, and 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. 38 C.F.R. § 4.16(a). In this case, the Veteran is service-connected for bilateral hearing loss, currently rated as 40 percent disabling; tinnitus, currently rated as 10 percent disabling; residuals of cold injury to the upper right extremity, currently rated as 10 percent disabling; residuals of cold injury to the upper left extremity, currently rated as 10 percent disabling; residuals of cold injury to the lower right extremity, currently rated as 10 percent disabling; and residuals of cold injury to the lower left extremity, currently rated as 10 percent disabling. The Veteran's combined rating for his service-connected disabilities is 70 percent, effective May 28, 2004. Therefore, he satisfies the schedular criteria of 38 C.F.R. § 4.16(a). If the (combined) schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are a veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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. Id. Marginal employment may also be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability-not whether a veteran is unemployable solely due to his/her service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In February 2005, the RO received the Veteran's formal application for TDIU on a VA Form 21-8940. At that time, he reported that he was not able to work because of his service-connected hearing loss and neuropathy. He indicated that August 1, 1990 was the date when he last worked full time and when he became too disabled to work. This form reflects that the Veteran worked as a fire chief for the city of Philadelphia, Mississippi from April 1970 to August 1990. It also shows that he worked as a driver for Pearl River Resort in Choctaw, Mississippi. The Veteran indicated that he left his last job because of his hearing loss disability and that he is not able to walk "any distance" due to the residuals of his cold injuries. Also regarding the Veteran's occupational history, an April 2005 VA Form 21-4192 completed by a human relations representative from Pearl River Resort indicates that the Veteran worked part time for that company from August 2001 to March 2003 as a limousine driver. It was noted that he "voluntary quit" from this position. Additionally, the December 2012 survey report details that following his retirement in 1990 from fire chief the Veteran drove cars for a Ford Dealership for 5 years. After this job, the survey indicates he began driving limos for Pearl River Resort until he was forced to voluntarily resign in 2003 due to complaints from customers that he was not able to hear them. The Veteran indicated when he quit his job as a limo driver that he "wasn't ready to quit, be [he] had to because [he] couldn't hear." Regarding education, the Veteran marked on the VA Form 21-8940 that he had completed 3 years of high school and that he did not have any other education and/or training before or since he became too disabled to work. The December 2012 survey reflects that the Veteran obtained his GED in 1956 while stationed in New Orleans, Louisiana. It was also stated that he received military training in motor transport, career advisory, and infantry. Although the Veteran contends that he is unable to work because of his service-connected disabilities, in particular due to his hearing loss, the preponderance of the evidence does not establish that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. A review of the record shows the Veteran receives VA treatment for his service-connected hearing loss and residuals from cold injuries. The record also contains the reports of several VA examinations performed in conjunction with these conditions. The Board will first look at the pertinent evidence regarding the Veteran's service-connected cold injuries. An August 2005 VA cold injury examination report reflects that the VA examiner noted that the Veteran reported that he had retired as a driver because he was unable to work a 12 hour shift due to his gastrointestinal problems, which required him to go to the bathroom very often. A February 2006 addendum to the cold injury examination stated that there were no significant findings relating to his cold injury that would preclude employment. The addendum concluded by noting that the Veteran's "cold injury does not preclude employment." Further regarding his cold injuries, in a November 2009 cold injury protocol examination, the VA examiner noted that the Veteran reported that his feet and hands do not cause him much trouble. It was noted that he can walk 20 yards before his hips lock up and he cannot walk. The Veteran reported he had quit his job as a limousine driver because of his gastrointestinal problems and his boss had received a few complaints about his poor hearing. Upon physical examination, the Veteran had a normal gait, motor strength of 5/5 with normal tone, dexterity, and coordination. Although there was moderate atrophy of the "1st DI bilaterally," he had good capillary refill and normal integumentary structures with no scars or missing tissue. The VA examiner observed that the Veteran had no limitation in the use of his hands or his feet from his cold injuries. The VA examiner found that the Veteran's residuals of cold injuries would not prevent any kind of employment. The VA examiner deferred to the VA audiologist on the severity of the Veteran's hearing impairment. Additionally, the Veteran underwent another VA examination regarding his cold injuries in June 2011 by the same examiner as in November 2009. The Veteran denied pain in the feet, but he complained of pain, numbness, and tingling in the right hip. The Veteran's cold sensitivity was also described. Physical examination revealed normal gait and station with fair heel/toe/tandem walk. He had 5/5 motor strength with normal tone and bulk. Further his sensory was described as intact to fine touch, vibration, and position. The examiner noted thickened left great toe nail and mild incomplete sensory loss in the right foot are the only manifestation of his cold injury and commented that neither of these would prevent most employment. Further, an April 2012 Disability Benefits Questionnaire (DBQ) report indicates the Veteran has not had any hand complaints and that physical examination showed "no issues with the hands." The report also reflects that "there is nothing involving the hands that would prevent employment in any occupation." Thus, despite the Veteran reporting on his VA Form 21-8940 that he is not able to walk "any distance" due to the residuals of his cold injuries, the Board finds that the Veteran's competent and credible statement in this regard is outweighed by VA examination reports of record showing that the effect of his service-connected cold injuries do not preclude him from obtaining or securing employment. Specifically, to the contrary, the November 2009 VA examiner indicated the Veteran had a normal gait and motor strength of 5/5 with normal tone, dexterity, and coordination. See also June 2011 VA neurological examination report. The April 2012 DBQ, completed by the Chief of Neurology Service, reflects that the Veteran's cold injury of the hands would not prevent employment because physical examination revealed "no issues of the hands." The August 2005, November 2009, June 2011, and April 2012 VA reports were prepared by physicians who provided competent medical evidence (via their education, training, and experience) that his service-connected cold injuries do not preclude employment. In light of the expertise of the physicians, the Board finds the above VA reports probative and assigns them a high-level of weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches."); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a "threshold consideration[ ]" when assessing the probative value of a medical opinion is "[t]hat the medical expert is suitably qualified"). The record contains several general and audiological VA medical opinions that concern the issue of whether the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation which will be discussed in turn. The report of an October 2009 VA general medical examination reflects that the VA examiner noted that a review of the Veteran's medical treatment records showed that his chronic medical problems included hypertension, urinary frequency, hyperlipidemia, coronary artery disease, gastroesophageal reflux disease (GERD), renal insufficiency due to left renal aneurysm, status post repair of abdominal aortic aneurysm, thoracic abdominal aortic aneurysm, osteoarthritis of the hip and mild chronic anemia. The VA examiner noted that these were significant medical conditions in addition to his service-connected disabilities. The VA examiner found that the Veteran's "most limiting medical condition otherwise appears to be his aneurysm." The VA examiner noted that the aneurysm prevents the Veteran from performing heavy physical work and limits him to light duty work. In the aforementioned November 2009 VA audiological examination report, the VA examiner noted that the Veteran had bilateral sensorineural hearing loss. The VA examiner stated that the Veteran's "tinnitus will not preclude employment." The VA examiner also found that the Veteran's hearing loss would not preclude employment due to the severity of his impairment; however, the examiner noted that the Veteran's poor word recognition ability would pose significant difficulties in most employment settings that relied on spoken communication. Again, while this report may not have substantially complied with prior Board remand directives, it holds some probative value as it described the level of severity and effects of his service-connected bilateral hearing loss and tinnitus disabilities. As set forth in the October 2012 Remand, the Veteran was afforded multiple VA examinations. In May 2011, the Veteran reported for a general medical examination and the examiner opined that he was not able "to define any disabilities that would interfere with his ability to perform his usual employment." Then, in June 2011, the record reflects the Veteran was afforded an ear, nose, and throat (ENT) examination, a neurological examination, joints examination, eye examination, and an audiological examination. In focusing on the effects of the Veteran's service-connected hearing loss on employment, the ENT examiner opined that given the severe loss of hearing and the loss of discrimination ability, the Veteran "is not a candidate for employability in any condition or situation in which he has to respond to or interact with other people" and that this is applicable to telephone and face-to-face conversation. The Veteran was given additional VA audiological examinations in June 2011 and again in September 2011. Although the examiner after the June 2011 audiological testing did not provide an opinion, the same examiner stated in September 2011 that while the Veteran's "hearing would not preclude him from employment, due to the severity of his loss and poor discrimination, speech discrimination would be difficult for the Veteran." It was further noted that employment which relies on spoken communication would pose a very significant difficulty to the Veteran, but his service-connected tinnitus did not preclude employment. Additionally, the April 2012 DBQ report (completed by the June 2011 ENT examiner) indicates that the claims file was reviewed and again notes that it would be extremely difficult for the Veteran to be employed in any situation where he has to respond to and interact with other people via telephone or face-to-face conversation. It was also stated that the Veteran should not be employed in "any situation where hearing is essential for his safety." As the Board noted in the October 2012 Remand, the ENT and audiological examiners each found that the Veteran has significant difficulty and/or problems with employment relying on spoken communication, but neither of these examiners suggested the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities. Similar to the November 2009 VA audiological examination, the above ENT and audiological examination reports are probative and hold some value because they describe the level of severity and effects of his service-connected disabilities. The DBQ report from a December 2012 VA examination reflects that "any employment setting which relies on spoken communication would be expected to be very difficult" for the Veteran. The VA audiologist indicated that the Veteran's tinnitus does not impact his ordinary conditions of daily life, including his ability to work. The December 2012 survey, completed by a Licensed Clinical Social Worker, stated that the Veteran's ability to be employed is hindered by his service-connected hearing loss and tinnitus; however, there are areas of the workforce in which the Veteran could possibly find employment. The social worker stated that the possible position would require that the Veteran does not have to utilize his hearing to ensure safety, nor use a telephone. The position could not be one where spoken communication is essential to completing the job. The social worker opined that "such a position could possibly be in the area of environmental services for a smaller sized convenience store, or perhaps a position as a cook." While the social worker stated that the Veteran is not able to physically meet the demands placed on an individual in any form of work environment, this opinion was rendered taking into consideration some of the Veteran's various non-service connected disabilities, such as blindness in his left eye with deteriorating sight in the right eye and newly diagnosed kidney disease. As noted above in the central inquiry of a TDIU claim, the Board may not consider the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The Board acknowledges a June 2011 VA joint examination report that indicates the Veteran "is completely disabled in doing all work." The VA examiner qualified this statement by noting that this "is especially from an orthopedic point of view of all manual labor." The Board discounts this opinion because it considered the impairment caused by the Veteran's nonservice-connected disabilities. In this regard, this examination report reflects diagnoses of degenerative arthritis of the hips, degenerative disk disease with radiculopathy and spinal stenosis, and vitamin B12 deficiency. The effects of all 3 of these nonservice-connected disabilities, as well as other nonservice-connected disabilities, were considered as the examiner explained that the Veteran cannot do manual labor because of his aneurysms and degenerative disk disease, spinal stenosis, and arthritis of the hips. As such, the Board assigns no weight to the June 2011 VA opinion that the Veteran is "completely disabled in doing all work." In considering all of the evidence of record, the Board finds that the Veteran's service-connected disabilities do not preclude the ability to obtain or maintain substantially gainful employment. The May 2011 general VA examination report reflects a statement that the examiner was "unable to define any disabilities that would interfere with his ability to perform his usual employment." The examiner added that the Veteran has an eleventh grade education, "which should be sufficient to gain employment." The Board acknowledges that this examiner was not specific regarding the impairment caused by the Veteran's service-connected disabilities individually and/or collectively as illustrated by the comment "I am unable to define." Nevertheless, the Board finds the opinion to have some probative value and weight regarding impairment caused by the Veteran's service-connected disabilities in light of his education and employment history. For instance, the examiner conducted an overview examination of the Veteran (excluding the ENT report) gaining important insight as to Veteran's disability picture as caused by his service-connected disabilities and non service-connected ailments. Additionally, the Board notes that several examiners, to include the December 2012 social worker, have stated that the possible employment for the Veteran would require that he does not have to utilize his hearing to ensure safety, nor use a telephone, or any position where spoken communication is essential to completing the job. Even considering this limitation, the social worker stated that the Veteran could obtain or secure employment in "perhaps a position as a cook." Indeed, the social worker's report indicated that the Veteran reported he "loved to cook" and that he would often prepare snacks for members of his spouse's quilting group. Considering the educational information that the Veteran obtained a GED, the social worker found that the Veteran could obtain a job in "environmental services for a smaller sized convenience store." Thus, the social worker addressed prior concerns regarding employment situations where the Veteran has to respond to and interact with other people via telephone or face-to-face conversation and suggested types of employment the Veteran could obtain given his educational background and employment history. The Board has considered, and is sympathetic to the Veteran's assertions regarding ongoing difficulty with his hearing impairment. The average impairment caused by his hearing impairment is reflected by the current 40 percent disability rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (holding that a claimant's current unemployment or difficulty finding employment is not enough, in itself, to warrant an award of TDIU). In this case, there is no showing that the Veteran's service-connected disabilities are sufficiently incapacitating as to render him unemployable. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). As the Board finds that the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU rating is denied. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs