Citation Nr: 1322304 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 12-08 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The RO's September 2011 letter advised the Veteran of the requisite elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish total disability rating based on individual unemployability (TDIU), as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with VA examinations in 2011 to determine whether his service-connected disabilities interfere with employment. In September 2012, the Board found that the examination reports were inadequate for rating purposes and remanded the claim to obtain new opinions. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Per the Board's remand, the Veteran was afforded new VA examinations in December 2012. The reports and opinions provided in December 2012 are adequate for rating purposes as the opinions are based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board also finds that there has been substantial compliance with its September 2012 remand as the RO provided the Veteran with adequate VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. TDIU is warranted when the evidence shows that the Veteran is precluded by reason of his service-connected 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. TDIU is granted only when it is established that the service-connected 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 is unemployed or has difficulty obtaining employment, but whether the veteran can 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 schedular 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). TDIU was previously denied by an unappealed Board decision in March 2011. The Veteran filed a claim for entitlement to TDIU in September 2011. Service connection is in effect for bilateral hearing loss, rated as 50 percent disabling; a cold injury to the right foot, rated as 30 percent disabling; a cold injury to the left foot, rated as 30 percent disabling; residuals of a cold injury to the right upper extremity, rated as 20 percent disabling; residuals of a cold injury to the left upper extremity, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and residuals of cold injury to the left ear, rated as 10 percent disabling. Service connection is also in effect for basal cell carcinoma as a residual of cold trauma, which is assigned a noncompensable rating. The combined evaluation of the service-connected disorders is 90 percent. Because the Veteran's service-connected residuals of a cold injury result from a common etiology, they will be considered as one disability. See 38 C.F.R. § 4.16(a). The schedular criteria for TDIU has been met; therefore, application of a TDIU is appropriate if the severity of the Veteran's disabilities warrant such a rating during this time. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In a VA Form 21-8940 received in September 2011, the Veteran reported that he completed high school and last worked full-time in 1993 as a carpenter instructor. In prior claims for TDIU and as recounted to VA providers, the Veteran also completed training as an apprentice carpenter. VA outpatient treatment records dated since March 2011 show basic maintenance for his hearing aids. In November 2011, the Veteran said he had difficulty hearing on the telephone; however, the VA provider said the difficulty was due to placement of the telephone. Otherwise, the treatment records do not show complaints related to his service-connected disabilities or indicate that they interfered with his ability to obtain and maintain substantially gainful employment. VA and private treatment records also show that the Veteran had several nonservice-connected disabilities which had a significant effect on his ability to obtain and maintain employment, to include senile dementia; diabetes mellitus, type II; coronary artery disease; hypertension; sleep apnea; spinal stenosis; glaucoma; hiatal hernia; and esophageal reflux. During an October 2011 VA examination for residuals of cold injuries to his hands, feet, and left ear, and for residuals of left ear basal cell carcinoma, the Veteran said his feet hurt in cold weather but that his hands did not bother him as much. He needed warm gloves if outside in cold weather. He said he worked as a carpenter for more than 40 years and retired in 1993. He did not require any medications or special day-to-day treatment for his residuals of cold injuries. Regarding the basal cell carcinoma, he had the cancer excised from his left ear. The examiner said the cancer had not recurred and that the residuals of the excision were asymptomatic. The examiner opined that the service-connected conditions did not interfere with his ability to secure or follow a substantially gainful occupation; however, the examiner did not provide a rationale to support the opinion. Therefore, the opinion is not adequate for determining entitlement to TDIU. In October 2011, the Veteran had a VA examination for his hearing loss and tinnitus. The examiner did not have the claims file for review and did not provide an opinion supported by rationale as to whether the hearing loss and tinnitus interfered with the Veteran's ability to secure or follow a substantially gainful occupation. Therefore, the examination report is inadequate for determining entitlement to TDIU. The Veteran had another VA examination for his residuals of cold injuries in December 2011. The examiner opined that residuals of cold injuries would prevent the Veteran from working outside in cold weather. No further explanation or rationale was provided, and therefore, the Board finds this examination is inadequate. In March 2012, the Veteran was afforded a VA examination for bilateral hearing loss and tinnitus. The examiner did not have the claims file for review. The examiner opined that the Veteran's hearing loss caused trouble with hearing when noise was present, while tinnitus caused occasional headaches, which impacted ordinary conditions of daily life, including the ability to work. Since the examiner did not have the claims file for review and did not opine as to whether the service-connected disorders interfered with the Veteran's ability to secure or follow a substantially gainful occupation, the examination report is inadequate for determining entitlement to TDIU. The Veteran had a VA audiology examination in December 2012. The examiner reviewed the claims file and noted that the Veteran had significant difficulty understanding conversation without hearing aids, and experienced residual difficulties in many situations even when wearing hearing aids. The examiner said tinnitus did not impact daily life, including the Veteran's ability to work. In a December 2012 addendum opinion, another VA audiologist opined that the Veteran's disorders did not render the Veteran unable to secure and maintain substantially gainful employment. The examiner opined that with appropriate amplification, such as hearing aids, the Veteran should be able to communicate with others, except in the presence of excessive noise. The Veteran had a VA examination for his residuals of cold injuries in December 2012. The examiner reviewed the claims file and treatment records identified on the General Medicine worksheet. The examiner noted that the Veteran graduated from high school and attended an apprenticeship under the International Carpenters Union after separation from service. He worked as a carpenter from 1955 to 1965 and served as a teacher from 1965 to 1993, teaching students how to build homes. The examiner opined that after reviewing the claims file, the evidence of record, and after having examined the Veteran, that the Veteran's service-connected disabilities "do not qualify him" for TDIU. The examiner found no demonstrable disruption based on his service-connected disorders with daily activities. The Veteran could still drive. He had "some functional disabilities, mostly slight decreased mobility of his upper or lower extremities." His service-connected disabilities would allow him to function in the job category of sedentary employment qualifying him for gainful employment. The examiner further stated that the Veteran was articulate, well dressed, and appeared on time for the exam. He was also able to ambulate short distances without the use of a walker. The examiner said he interviewed the Veteran for nearly one full hour and that the Veteran appeared comfortable in the chair, without discomfort. The examiner also noted that his review of VA treatment records showed no complaints or assessment of hand, feet, or ear pains; numbness; or cold intolerance. Thus, the examiner concluded that the service-connected disorders were not problematic. Lay evidence has been provided by the Veteran in this case during the course of his VA examinations. The Veteran's statements are competent evidence to report on factual matters of which he has firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to his current symptomatology and with respect to his work history. His statements are competent to provide such statements, and the Board finds that these statements are credible. These statements were also given in conjunction with his VA examinations and were considered by VA examiners in evaluating the effect of his service-connected disabilities on occupational employment. The Veteran is not currently working. Evidence of record shows that he last worked as an instructor at the United Brotherhood of Carpenters and Joiners of America in 1993. Nevertheless, VA treatment records do not reflect any complaints or treatment related to the Veteran's service-connected disabilities other than routine maintenance and repairs on hearing aids. The December 2012 VA examiners also found that while the Veteran's service-connected disabilities limit his ability to obtain and maintain substantially gainful employment, his service-connected disabilities did not preclude employment. Specifically, the examiner found that while the Veteran had a slight decrease in the mobility of his upper or lower extremities, his service-connected disabilities would allow him to function in the job category of sedentary employment qualifying him for gainful employment. Further, the addendum to the audiology examination indicates that bilateral hearing loss and tinnitus do not render the Veteran unable to secure and maintain substantially gainful employment and that with appropriate amplification, he should be able to communicate with others, except in the presence of excessive noise. Regarding the basal cell carcinoma, there is no evidence of its recurrence and the residuals have been noted as asymptomatic. Overall, the medical evidence of record does not indicate that the Veteran's service-connected disabilities, even when considered together, are of such a severity that they render the Veteran unemployable. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of TDIU, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs