Citation Nr: 1319117 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-31 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a total disability rating 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 A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO) that continued the denial of a TDIU rating. Jurisdiction over the claim was subsequently transferred to the RO in Oakland, California. When this case was previously before the Board in April 2011, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT The Veteran's service-connected disabilities, singly or in combination, do not preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and employment background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to a TDIU. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided the required notice in a letter sent in December 2007, prior to the initial adjudication of the claim. Although the Veteran was not provided complete notice with respect to the initial-disability-rating and effective-date elements of a service-connection claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that it has determined that entitlement to a TDIU is not warranted; therefore, there will be no disability rating or effective date. There is also no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. Service treatment records, post-service VA medical records, and Social Security Administration (SSA) records have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. In sum, the duties to notify and assist have been satisfied, and the Board will accordingly address the merits of the claim. Legal Principles 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. 38 C.F.R. § 4.16. 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." 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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, 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, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the purpose of determining whether a claimant has one disability rated at 60 percent or more, disabilities resulting from common etiology or one accident will be considered one disability. 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 not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran's service-connected disabilities consist of bilateral hearing loss, rated at 60 percent and tinnitus, rated at 10 percent. The combined rating for the service-connected disabilities is 60 percent. The disabilities are of common etiology. Therefore, the Veteran meets the minimum schedular criteria for a TDIU. In his formal claim for a TDIU submitted in July 2007, the Veteran indicated that he last worked in October 2004 as a truck driver. The Board notes that SSA records in March 2005 show that the Veteran underwent a psychological therapy assessment and consultation in which the examiner stated that, not taking in account of the Veteran's possible physical limitations, that he was likely unable to perform work-related activities on a consistent basis requiring an eight-hour workday. The Board notes that this assessment was based upon cognitive problems that are not service-connected. As such, the opinion is not sufficient to grant a TDIU which must be based upon service-connected disabilities. The record is replete with VA medical center notes showing the Veteran's continued hearing loss care, to include hearing aids. Specifically in October and November 2007, the Veteran complained that his hearing aids were too loud and at the follow-up appointment he stated that he was happy with the sound quality. The Veteran stated in his notice of disagreement and formal appeal, VA Form 9, that he had not worked as a direct result of his inability to communicate/hear. He stated that in his past employment as a truck driver, his ability to hear was critical to public safety. The Veteran was afforded a VA examination in July 2011 in which the examiner provided an opinion that was inadequate for adjudication purposes based upon the rationale. Therefore, the examiner submitted an addendum opinion in March 2012 in which she stated that the Veteran's current hearing loss and tinnitus alone would not render him unable to obtain and maintain gainful employment. She opined that although he had some difficulties understanding speech in the presence of background noise with his hearing aids, his abilities to hear would not hinder him from obtaining and maintaining gainful employment as the most recent research from the Gallaudet University showed that deaf and hard of hearing individuals can obtain and maintain just about any job including mechanics. Moreover, based on the Department of Motor Vehicles regulations with the use of proper hearing aids, the Veteran would also be able to continue work as a diesel truck driver. On review of the evidence above the Board cannot find that the Veteran's service-connected disabilities, alone, render him unable to obtain or maintain gainful employment. The record shows that the Veteran continues to demonstrate the capacity for sustained substantial gainful activity. The Board acknowledges consistent with the VA treatment records, examination, and the Veteran's complaints that his service-connected disabilities present certain limitations with communication and hearing. Nevertheless, he retains the ability to perform work as described above. No medical professional has opined that the Veteran's service-connected disabilities actually render him unable to obtain or maintain substantially gainful employment consistent with his occupational background of being a truck driver. For the reasons stated above the Board concludes the preponderance of the evidence establishes that the Veteran's service-connected disabilities are not sufficient by themselves to render him unable to obtain or maintain substantially gainful employment. Accordingly, this claim must be denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs