Citation Nr: 1319667 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 08-33 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1944 to March 1946. Receipt of the Purple Heart and the Combat Infantry Badge is demonstrated by the evidence of record. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's increased rating claim for his service-connected hearing loss disability, and denied eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. The Veteran disagreed with these decisions, and perfected an appeal as to both issues. In June 2010, the Board remanded the above-referenced claims for further evidentiary development. In that decision, the Board also assumed jurisdiction of a claim for entitlement to TDIU based on a review of the evidence of record, and in accordance to the Court of Appeals for Veterans Claims (Court) decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). At that time, the Board remanded the TDIU claim for additional evidentiary development and adjudication as well. In an April 2011 decision, the Board denied the Veteran's claims for an increased rating for his service-connected hearing loss disability, eligibility for DEA under 38 U.S.C. Chapter 35, and entitlement to TDIU. Thereafter, the Veteran appealed that decision regarding the claim of entitlement to TDIU to the Court in July 2011. The Court and the RO were informed of the Veteran's death in September 2012 when the Veteran's surviving spouse filed a motion for substitution as the appellant in the place of the Veteran. Under the provisions of 38 U.S.C.A. § 5121A, when a claimant dies on or after October 10, 2008, an eligible survivor may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim(s) to completion. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (substitution in case of death of a claimant who dies on or after October 10, 2008)). In a November 2012 memorandum, the RO determined that the Veteran's surviving spouse, now referred to as the appellant, qualified as a proper substituted claimant and was therefore substituted for the deceased Veteran for the purpose of pursuing the claim for entitlement to TDIU. In a February 2013 Memorandum Decision, the Court vacated the April 2011 Board decision in regards to the issue of entitlement to TDIU, remanding that matter to the Board for readjudication. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that further development on the issue of entitlement to TDIU is warranted. Generally, VA will award entitlement to TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran was unemployed or had difficulty obtaining employment, but whether the veteran could perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 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 it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating may be assigned, where the scheduler rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, the following are considered one disability: 1) disabilities of both upper or lower extremities, including the application of the bilateral factor; 2) disabilities from a common etiology or a single accident; 3) disabilities affecting a single body system; 4) multiple injuries incurred in action; or 5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a) (2012). A longitudinal review of the record shows that the Veteran was service-connected for bilateral hearing loss, rated as 60 percent disabling, and tinnitus, rated as 10 percent disabling. The Veteran met the criteria for schedular consideration of TDIU, as he had two disabilities affecting a single body system (hearing loss and tinnitus) with the combined rating of 60 percent. The Veteran asserted that his service-connected bilateral hearing loss and tinnitus disabilities caused him to be unemployable. In written statements of record, the Veteran reported that his hearing loss had diminished since the day he sustained his in-service combat injury in 1945 to the present day. In an August 2007 statement, the appellant indicated that the Veteran's hearing impairment forced her to repeat herself two or three times when speaking to him on a daily basis. In an August 2009 VA examination report, the VA examiner concluded after review of the record and upon examination of the Veteran that the Veteran's hearing loss and poor word recognition abilities likely caused significant communication difficulties in most situations, even with the use of hearing aids. However, the examiner opined that hearing loss did not prevent one from obtaining or maintaining employment. In June 2010, the Board remanded this matter in order to obtain a thorough and contemporaneous medical examination to ascertain whether the Veteran's service-connected disabilities rendered him unemployable. In an October 2010 VA examination report, the Veteran indicated that he was not employed and that he retired as a tow truck driver 20 years before due to his age and not his hearing loss. The examiner specifically found that the Veteran's hearing loss would likely cause significant communication problems in any occupation, but that such problems should be at least partially overcome with the use of his hearing aids. The examiner concluded that the Veteran's hearing loss and tinnitus did not preclude obtaining or maintaining employment. VA outpatient treatment records detailed that the Veteran received treatment for multiple nonservice-connected disabilities such as congestive heart failure, Parkinson's disease, incontinence, diabetes, senile macular degeneration of the retinas, depressive disorder, dementia, hypertension, sick sinus syndrome, gastroesophageal reflux disorder, and multiple joint arthritis. Crucially however, as noted above, impairment caused by nonservice-connected disabilities is not to be considered in evaluating a veteran's claim for TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, a remand is required for this matter in order to comply with the February 2013 Memorandum Decision. In that decision, the Court found that the October 2010 VA examination report was inadequate and did not comply with the June 2010 Board Remand instructions. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Stegall v. West, 11 Vet. App. 268 (1998). It was determined that the October 2010 VA examiner did not attempt to elicit information regarding the Veteran's work and educational history with the level of specificity required by the June 2010 Board remand instructions. Instead, the examiner simply noted that the Veteran was not employed and that he retired as a tow truck driver 20 years before due to his age. The Court also commented that it was troubled by the similarities between the August 2009 VA examination report and the October 2010 VA examination report, noting that the examinations were performed by the same examiner and detailing that the Board likely would not have ordered the October 2010 examination had it considered the August 2009 examination sufficient in describing the impact of the Veteran's disability on his ability to work. Thereafter, the Court concluded that the Board's finding in the April 2011 decision that VA satisfied its duty to assist and complied with prior remand order was clearly erroneous. It was further indicated that the Board's reliance on the October 2010 VA examination report as probative evidence was in error. After noting the appellant's substitution in the place of the Veteran, it further held that the appellant was entitled to the rights afforded to a veteran on remand in light of the Secretary's remarks and parties agreement on the matter. In light of the cumulative record discussed above as well as the findings in the Court's February 2013 Memorandum Decision, the AMC should elicit information concerning the Veteran's full work and educational history from the appellant as well as obtain an additional VA medical opinion to clarify whether the Veteran's service-connected bilateral hearing loss and tinnitus disabilities rendered him unable to secure or follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the appellant a notice letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include notice regarding what the evidence must show to warrant entitlement to TDIU. 2. The AMC must contact the appellant and elicit from her the Veteran's full work and educational history as well as any additional information concerning the functional impact of his service-connected bilateral hearing loss and tinnitus disabilities. 3. Thereafter, the AMC must obtain a VA medical opinion from an appropriate examiner in order to determine the effects the Veteran's service-connected bilateral hearing loss and tinnitus had on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims file and all pertinent records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any pertinent Virtual VA records have been reviewed. Based on a review of the claims file, the statements of the Veteran and appellant as to the functional effects of the Veteran's service-connected bilateral hearing loss and tinnitus, and the Veteran's education and occupational experience, the examiner must provide an opinion as to whether the Veteran's service-connected bilateral hearing loss and tinnitus precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age during the appeal period. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The AMC must review the record to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the AMC must readjudicate the claim for entitlement to TDIU on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After she has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).