Citation Nr: 1319130	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  13-02 960	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. M. Kreitlow



INTRODUCTION

The Veteran had active military service from June 1955 to June 1959.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

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 at 60 percent for asbestosis, 50 percent for bilateral hearing loss and 10 percent for tinnitus, for a total combined disability rating of 80 percent.

2.  The Veteran completed high school and one year of college, but did not obtain a college degree.  The Veteran's post-service employment has all involved manual labor.

3.  The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him.


CONCLUSION OF LAW

The criteria for an award of a TDIU have been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial.

In August 2011, the Veteran filed his claim for a TDIU claiming that he is unemployable due to his service-connected disabilities, especially his bilateral hearing loss and asbestosis.  

Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities:  Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient  additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  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).  

To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  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).  

Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 4.15.  

At the time he filed his claim in August 2011 and since then, the Veteran has been service-connected for the following disabilities:  (1) bilateral hearing loss, evaluated as 50 percent disabling; (2) tinnitus, evaluated as 10 percent disabling; and (3) asbestosis, evaluated as 60 percent disabling.  His combined disability rating is 80 percent.  Thus, he meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a).  However, the evidence must still show that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities in order for a TDIU to be warranted.  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).  

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm.  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high 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 the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).   Factors to be considered are the veteran's education, employment history and vocational attainment.  See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).

The Veteran reported on his TDIU application that he was last employed as a general laborer with an auction house from 1994 to 2007 and that he was unable to continue working because of his asbestosis and hearing loss.  However, on VA Form 21-4192, that employer indicated the Veteran quit working in April 2004 because he was unable to move heavy furniture after a heart attack.  At a November 2011 VA examination, the Veteran reported his usual occupation as truck driver and having last worked in 2004.   However, he also reported employment for 32 years with McDonnell Douglas as a stationary engineer.  (See July 2008 and October 2011 VA audiological examination reports.)  The Board finds the Veteran's employment experience has essentially been in manual labor - first as a stationary engineer for 32 years and then as a general laborer for an additional 10 years.

The Veteran completed high school and one year of college, but did not receive a college degree.  See TDIU Application. 

Service connection for bilateral hearing loss and tinnitus was established effective June 26, 2008, evaluated as 50 percent and 10 percent, respectively.  The 50 percent disability rating for bilateral hearing loss was based upon VA audiological examination conducted in July 2008 at which time he reported bilateral tinnitus and difficulty understanding speech without the use of hearing aids.  Pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
55
80
80
90
76
LEFT
55
85
95
95
83

Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 40 percent in the left ear.  

The Veteran's hearing was re-examined in October 2011, at which time pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
65
90
95
100
87.5
LEFT
70
100
100
95
91.25

Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 68 percent in the left ear.  The examiner stated the Maryland CNC speech recognition performance in both ears was poor.  The examiner assessed the Veteran to have severe sensorineural hearing loss in the right ear and profound sensorineural hearing loss in the left ear.  The Veteran also reported tinnitus that was recurrent/intermittent.

In discussing the functional impairment caused by the Veteran's hearing loss and tinnitus, the examiner stated that the Veteran's hearing loss and tinnitus typically interfere with word understanding in any type of competing noise.  He may have difficulty hearing spoken guidance, instructions or comments from other workers when in noise.  He may also have difficulty understanding telephone communication since one cannot read lips and facial expressions of the other talker during telephone exchanges.  However, once he understands the topic at hand, the hearing loss and tinnitus should not interfere with completion of physical or sedentary activities of employment.

Service connection for asbestosis was established effective January 27, 2010, and evaluated as 60 percent disabling based upon findings from a VA examination conducted in March 2010.  At that time, the Veteran complained of loss of appetite, cough with purulent sputum, and shortness of breath at rest and after walking one-half a city block, but denied hemoptysis, a daily cough with blood-tinged sputum, orthopnea and asthma attacks.  He did endorse contracting infections easily requiring antibiotic use one time per year for 14 days.  He further reported he was on no treatment for this condition to include respiration assistance or usage of outpatient oxygen therapy.  He reported that he did not experience any overall functional impairment from this condition.  Physical examination of the lungs was within normal limits.  Pulmonary function tests (PFTs) showed post-bronchodilator FEV-1 of 56 percent of predicted and FEV-1/FVC of 75 percent.  The examiner indicated that the FEV-1 more accurately reflected the severity of the condition.  The diagnosis (based on B-reader report) was asbestosis.  The examiner remarked that the effect of the Veteran's asbestosis on his usual occupation and daily activities was limited exertional capacity.

The Veteran was re-examined in October 2011 at which time he reported having hemoptysis and shortness of breath after walking one city block.  He denied loss of appetite, cough with purulent sputum, cough with blood-tinged sputum, orthopnea, or asthma attacks.  He also denied contracting infections easily and having episodes of respiratory failure.  He stated he was not receiving any treatment for his asbestosis, and that he did not experience any overall functional impairment from this condition.  Physical examination of the lungs was within normal limits.  Pulmonary function tests (PFTs) showed post-bronchodilator FEV-1 of 58 percent of predicted and FEV-1/FVC of 72.4 percent.  The examiner indicated that the FEV-1/FVC more accurately reflected the severity of the condition.  The diagnosis was asbestosis that was quiescent at that time.  In responding to a question as to the functional impairment caused by this service-connected disability, the examiner stated that physical activities are impaired by ischemic heart disease because of fatigue and dyspnea but sedentary activities are not affected.

However, the Board notes that it appears that the VA examiners did not take into account the Veteran's education and work history when rendering their opinions. The Veteran enlisted in the military after high school and only completed one year of college.  He did not obtain a college degree. The Veteran's over four decade post-service employment is limited to the field of manual labor as he worked as a stationary engineer (which appears from the records to essentially require maintaining boilers) and as a general laborer (driving a truck and hauling furniture).  Although the VA examiner who conducted the general medical examination in October 2011 found the Veteran's symptoms of fatigue and shortness of breath would not affect or impose work restrictions in a sedentary job, the examiner did not specify whether the Veteran's education, training and/or prior work experiences qualify him for gainful work in a sedentary environment.  The Board finds this omission problematic in light of the Veteran's educational and work history.   

Additionally, the October 2011 VA general medical examination report lists the symptoms of fatigue and shortness of breath in association with multiple medical conditions the Veteran has, both service-connected and nonservice-connected.  The examiner failed to specifically attribute those symptoms to any particular medical condition and the Board finds that it cannot disassociate the Veteran's complaints of fatigue and shortness of breath related to his service-connected asbestosis from those given related to his nonservice-connected medical conditions.  In evaluating the Veteran's service-connected asbestosis, the Board notes that the RO has accepted the findings of the PFTs to be wholly associated with that disability and has evaluated it as 60 percent disabling based upon the objective PFTs.  Although the examiner stated that his asbestosis is quiescent at the time of the examination, this cannot be read to mean that there is no functional impairment as such is shown on the PFTs conducted, which also noted that the Veteran's lung age is 100 (he was 74 at the time of the examination).  

Furthermore, the Board notes that the Veteran's hearing loss is evaluated as 50 percent disabling indicating a significant hearing impairment.  The VA audiologist who conducted the October 2011 VA examination stated that the Veteran had severe sensorineural hearing loss in the right ear and profound sensorineural hearing loss in the left ear.  She also stated that the Veteran's hearing loss and tinnitus would interfere with word comprehension where there is any type of competing noise.  Given the Veteran's education and work history, the Board finds that it is as likely as not that his hearing loss and tinnitus would preclude sedentary work for which he would be qualified, which would be essentially unskilled work that would likely have him working in sales or a similar position that would require regular spoken communication with others either face-to-face or by telephone.  The Board finds it unlikely that such employment would reasonably be in an environment where there is no background noise such that the Veteran would be able hear spoken guidance, instructions or comments without difficulty.

After review of the evidence of record, the Board finds that the Veteran is entitled to a TDIU as his service-connected disabilities as likely as not preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him.  Thus, the Veteran's service-connected disabilities have rendered him unemployable.  In reaching this conclusion, the Board has considered the Veteran's educational and occupational background which is limited to a twelfth grade education with one year of college and post-service work experience performing manual labor, as well as the medical evidence.  Therefore, the Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and should be rated as totally disabled. 


ORDER

Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary benefits.




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs