Citation Nr: 1317878 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-37 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim for a TDIU. The claim was most recently remanded by the Board in December 2012. The requested action was taken, and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. 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's service-connected disabilities include: cold injury residuals of the right hand, rated 30 percent disabling; cold injury residuals of the left hand, rated 20 percent disabling; cold injury residuals of the left foot, rated 20 percent disabling; tinnitus, rated 10 percent disabling; cold injury residuals of the right foot, rated 10 percent disabling, and bilateral hearing loss, rated noncompensable (0 percent). His combined rating is 70 percent. 2. The Veteran meets the schedular requirements for a TDIU, but his service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As noted in the Introduction above, the Board most recently remanded the Veteran's claim in December 2012 for further opinions related to his employability. The Remand directed requested that the Veteran be afforded a VA audiological examination to determine whether his bilateral hearing loss and tinnitus, alone or all together, rendered him unable to obtain and maintain substantially gainful employment. The Remand also requested the Veteran be afforded another examination by an appropriate physician to determine whether the Veteran's tinnitus and bilateral hearing loss, either alone or combined with his service-connected cold weather injuries, render him incapable of securing or maintaining substantially gainful employment. The Veteran was afforded a VA audiological examination in January 2013, during which the examiner opined that the Veteran's bilateral hearing loss and tinnitus, whether individually or combined, would not prevent him for obtaining or maintaining gainful employment. This opinion was compliant with the December 2012 remand directive. The Veteran was also afforded a VA examination by a VA staff physician in April 2013. He was asked to provide an opinion with respect to the Veteran's service-connected disabilities and their impact on his employability. Specifically, the examiner was asked to provide an opinion was to whether the Veteran's tinnitus and bilateral hearing loss, either alone or combined with his service-connected cold weather injuries, render him unable to secure or maintain substantially gainful employment. The examiner had previously examined the Veteran in 2010. The examiner indicated that he is not an audiologist and deferred to the January 2013 audiologist with respect to the portion of the opinion requested that addresses bilateral hearing loss and tinnitus. This VA physician opined that despite the Veteran's cold injury residuals, he is able to perform sedentary work and a full range of light physical effort in terms of employment. Although, it appears that the April 2013 examiner did not assess the employment implications that the Veteran's bilateral hearing loss, tinnitus, and cold injury residuals in combination, the April 2013 examiner did not feel he could speak to the audiological portion of the requested opinion based upon his lack of expertise. Furthermore, the Veteran underwent two examinations in January 2013 and April 2013-both of which addressed the respective employability question to bilateral hearing loss and tinnitus and cold injury residuals. Moreover, as discussed below, the Veteran has not indicated to VA examining personnel that he has been unable to obtain/maintain employment due to his bilateral hearing loss and tinnitus. As such, the Board finds there is substantial compliance with the Board's prior remand instructions with respect to obtaining responsive VA examinations. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required]. Initial Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in January 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); 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 order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of TDIU. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided VA examinations most recently in January 2013 and April 2013. The examiners considered the Veteran's complaints, post-service treatment records, and results of the physical examinations. Based on the foregoing, the examiners concluded that the Veteran's cold injury residuals, bilateral hearing loss, and tinnitus did not prevent him from obtaining and maintaining substantially gainful employment. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is 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 for compensation 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Factual Background and Analysis The Veteran's service-connected disabilities include: cold injury residuals of the right hand, rated 30 percent disabling; cold injury residuals of the left hand, rated 20 percent disabling; cold injury residuals of the left foot, rated 20 percent disabling; tinnitus, rated 10 percent disabling; cold injury residuals of the right foot, rated 10 percent disabling, and bilateral hearing loss, rated noncompensable (0 percent). His combined rating is 70 percent. Therefore, the Veteran's service-connected disabilities meet the rating percentage threshold for a TDIU. 38 C.F.R. § 4.16(a). Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16. In his November 2009 application for a TDIU, the Veteran reported that he finished two years of high school. He was last employed as a maintenance worker in August 2008. The Veteran contends that his service-connected disabilities render him unemployable because no one will hire him because of his service-connected cold injury residuals, bilateral hearing loss, or tinnitus. He indicated that he has significant difficulty driving, gripping, standing, and walking due to his cold injury residuals. VA contacted the Veteran's most recently employer, a country club, regarding this employment. The employer indicated that the Veteran's termination of employment was because it was seasonal work and there was a reduction in force. The Veteran had not lost any time from work due to disability, nor was he entitled to any sick, retirement, or other benefits. In addition, his employer had not offered him any concessions by reason of age or disability. The Veteran was afforded VA examinations in May 2012 in an attempt to determine whether his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. Although VA personnel indicated that both his hearing disabilities and his cold injury residuals should be examined, it appears that only his cold injury residuals were addressed in May 2012. Following review of the claims file, physical examination, and interview of the Veteran, the examiner opined that the Veteran's cold injury residuals impact his ability to perform heavy labor. The examiner opined that despite his age and collateral health issues, the Veteran is able to work in trades not involving heavy labor. He noted that the Veteran was a groundskeeper for many years following his return from Korea and also operated a gas station for 15 years. The examiner indicated that this was all "fairly robust work." No opinion was provided with respect to his service-connected bilateral hearing loss and tinnitus. In December 2012, the Board remanded this claim for further development-the most important of which was to address his bilateral hearing loss and tinnitus' effects on his employability. In January 2013, the Veteran was afforded a VA audiological examination, during which he reported various post-service employment (service station clerk, mechanic, driving a concrete truck, and landscaper). Most recently, he reported working simultaneously at a friend's service station and in a maintenance job at a local country club. He stated that he was laid off from the country club in 2007, and did not seek new employment at that time because he wished to undergo a hip replacement. He ultimately had this hip replaced in 2008. The examiner noted that the Veteran made no claims that his service-connected bilateral hearing loss or tinnitus caused any difficulty in his ability to obtain or maintain gainful employment. For the foregoing reasons, the examiner opined that the Veteran's bilateral hearing loss and tinnitus, individually or combined, would not prevent the Veteran from obtaining or maintaining gainful employment. The January 2013 audiologist did note that the Veteran was pleasant in his demeanor, but his audiological results were inconsistent and did not appear to reflect the Veteran's maximal effort. Despite being reinstructed/encouraged throughout the testing, there was no improvement in his admitted responses. As such, she determined there was poor interest reliability and any test results are considered invalid and unreliable. In April 2013, the Veteran's claims file was sent to a VA physician to obtain an opinion as to whether the Veteran's cold injury residuals, alone or in combination with his hearing-related disabilities, caused him difficulty obtaining or maintaining gainful employment. The examiner indicated that he is not an audiologist and defers the opinion with respect to bilateral hearing loss and tinnitus to the January 2013 audiologist. He stated that the Veteran's cold injury residuals do not prevent him from obtaining and maintaining substantially gainful employment. He opined that despite the Veteran's service-connected cold injury residuals, he would be able to perform sedentary work and a full range of light physical effort in employment. Having carefully reviewed the medical evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran is precluded from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. In reaching that conclusion the Board notes that there is no competent evidence of record showing that the Veteran's bilateral hearing loss, tinnitus, and cold injury residuals prevent him from obtaining and maintaining substantially gainful employment. As noted above, the Veteran underwent comprehensive VA examinations in January 2013 and April 2013, which addressed his service-connected hearing related and cold injury disabilities. The audiologist opined that the Veteran's bilateral hearing loss and tinnitus do not prevent him for obtaining and maintaining employment. In addition, he never reported any employment problems related to his hearing difficulties and tinnitus. The April 2013 staff physician opined that his cold injury residuals would not impact his ability to perform sedentary labor or other employment requiring light physical effort. There is no clinical opinion to the contrary. In that regard, the Board finds the January 2013 and April 2013 VA medical opinions to be of significant probative value as they are definitive, based upon a complete review of the Veteran's entire claims file, review of the Veteran's work history, and supported by detailed rationale. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The reviewers considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted complete physical examinations, but concluded that the Veteran's cold injury residuals only impacted his ability to perform heavy labor, and his bilateral hearing loss and tinnitus did not impact his employment at all. Furthermore, a complete and thorough rationale was provided for the opinions rendered. Specifically, the Veteran indicated that he only stopped working in 2007/2008 because he was laid off and did not seek additional employment because he was contemplating a hip replacement. Additionally, his most recent employer indicated that the Veteran was neither let go because of any disability, nor was he offered any concessions due to his disability. Here, the overwhelming medical evidence of record does not show that the Veteran is unemployable due to his service-connected disabilities. The Veteran has asserted that he is unemployable due to service-connected disabilities. To this extent, his statement is of some probative value. The Board finds, however, that the probative value of the conclusions of the January 2013 and April 2013 VA examiners outweigh the lay statements provided by the Veteran. In closing, the Board does not doubt that the Veteran's service-connected disabilities have some impact on his employability. However, the 70 percent schedular evaluation currently in effect recognizes significant industrial impairment resulting from his disorders. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs