Citation Nr: 1324462 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 13-09 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1951 to October 1954. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied a TDIU. 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. Prior to February 17, 2010, the schedular percentage criteria for a TDIU rating were met as the Veteran had a combined rating of 80 percent, to include the following service-connected disabilities: bilateral hearing loss, rated as 80 percent disabling, and tinnitus, rated as 10 percent disabling. 2. On and after February 17, 2010, the schedular percentage criteria for a TDIU rating are met as the Veteran's bilateral hearing loss and tinnitus, considered to be one disability due to a common etiology and the affect of a single body system (audiological and neurological), combine to a 60 percent rating. 3. For the entire period, the service-connected bilateral hearing loss and tinnitus disabilities did not preclude the Veteran from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In January 2010, VA provided the Veteran pre-adjudication notice regarding the claim for TDIU that was adjudicated in the March 2010 rating decision on appeal. This notification complied with the VCAA notice requirements of identifying the evidence necessary to substantiate a claim for TDIU, and the relative duties of VA and the claimant to obtain evidence. A claim for a TDIU is in essence a claim for an increased rating. Norris v. West, 12 Vet. App. 413 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994); Hurd v. West, 13 Vet. App. 449 (2000) (recognizing that a TDIU claim was a form of increased rating claim by applying increased rating effective date regulatory provisions to a TDIU claim). The Board also finds that the VCAA duties to assist the Veteran have been met. The record in this case includes service treatment records, VA treatment records, private medical opinions, and lay evidence. Further, the Veteran was afforded a VA audiological examination in March 2013 that specifically addressed the Veteran's service-connected disabilities (bilateral hearing loss and tinnitus) and the effects of such disabilities on the ability to obtain and follow a substantially gainful occupation. The March 2013 VA examination was thorough, including based on a review of the claims folder and an interview with the Veteran. The opinion rendered was supported by a rationale and discussion of symptoms. Accordingly, the Board finds that the VA opinion and findings obtained in this case are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has considered the representative's June 2013 informal hearing presentation. Specifically, the representative has requested that the Veteran be afforded another VA examination to ascertain the current severity of the service-connected disabilities and to provide another opinion as to the claim for a TDIU. The Board notes that a May 2013 VA medical opinion recommended that another VA examination may be in order due to discrepancies between a private audiological medical opinion and VA examination reports. Upon review of the evidence of record, the Board finds that another VA examination or VA medical opinion is not warranted to properly adjudicate the claim for a TDIU. The Veteran has been afforded numerous audiological examinations during the last five years, both from private and VA examiners. Further, the May 2013 VA examiner provided a detailed and thorough report on the medical discrepancies of record, including review of the aberrational private audiology examination and opinions provided in April 2013. Accordingly, the Board finds that another VA examination is not necessary in order to decide whether a TDIU is warranted as there is sufficient competent medical evidence of record to decide the claim. 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Further, the Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to the Veteran's claim. TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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 service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran fails to meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extra-schedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2012). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). TDIU Analysis Prior to February 17, 2010, the Veteran had a combined rating of 80 percent, to include the following service-connected disabilities: bilateral hearing loss, rated as 80 percent disabling, and tinnitus, rated as 10 percent disabling. For the period on and after February 17, 2010, the combined rating was 60 percent, based on the following service-connected disabilities: bilateral hearing loss, rated as 50 percent disabling, and tinnitus, rated as 10 percent disabling. As noted above, TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In the present case, the Board finds that the combined rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met for the entire rating period. Prior to February 17, 2010, the combined service-connected disability rating was 80 percent, meeting the combined rating percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). Even though on and after February 17, 2010, the Veteran's combined rating was 60 percent, the Veteran's bilateral hearing loss and tinnitus are considered one disability as they are of a common etiology (in-service acoustic trauma) and affect a single body system (audiological/neurological). See 38 C.F.R. § 4.16(a)(2) and (3). Therefore, because bilateral hearing loss and tinnitus are considered one disability, the Veteran meets the 60 percent criteria for one disability under 38 C.F.R. § 4.16(a) for the entire rating period. As to the favorable evidence in support of a TDIU, the Veteran contends that he is unable to handle or secure gainful employment due to his service-connected bilateral hearing loss and tinnitus disabilities. Pursuant to his December 2009 claim for a TDIU (VA Form 21-8940), the Veteran alleges that he last worked on a full-time basis in 1987 as a product service trainer. Thereafter, from 1988 to 1993, the Veteran worker part-time as a window inspector and repairman. The Veteran contends that symptoms of bilateral hearing loss and tinnitus are most troublesome when there is competing noise in the environment and while more than one person is speaking. He further maintains that tinnitus mostly bothers him at night and he takes medicine four out of seven nights a week in order to help him sleep. Further evidence in support of a TDIU includes two medical opinions from audiologist Dr. A.L.B., dated September 2010 and April 2013. In the September 2010 opinion, Dr. A.L.B. stated that the results of her own audiological examination of the Veteran's hearing was consistent with that conducted by VA. The Board finds that although Dr. A.L.B.'s September 2010 written report and opinion has been associated with the claims file, the purported September 2010 audiological report is not of record. As such, the September 2010 medical opinion has reduced probative weight as the Board is unable to verify whether an audiological examination was in fact performed at that time. That notwithstanding, Dr. A.L.B.'s September 2010 opinion was that the Veteran's profound hearing loss and tinnitus had essentially rendered the Veteran unemployable. It was noted that the Veteran should avoid working in any environment in which there was any noise, which may exacerbate his hearing loss. Additionally, it was noted that these limitations would prevent verbal communication face-to-face as well as by telephone. Dr. A.L.B. noted that the Veteran's hearing loss and tinnitus would pose a significant safety risk in any job setting involving transportation, driving, or being around heavy or moving machinery. Dr. A.L.B. further opined that the Veteran's service-connected hearing loss would significantly impair his employability in most job assignments with or without adaptation. However, Dr. A.L.B. recommended that the Veteran be evaluated for new amplification with frequency compression to help him better understand speech. The Board finds that Dr. A.L.B.'s statements appear to be contradictory. On the one hand, she opines that the Veteran's hearing loss and tinnitus disabilities are so severe as to render him unemployable with or without adaptation. On the other hand, Dr. A.L.B. recommends that the Veteran be evaluated for new amplification to help him better understand speech. This suggests that the Veteran is able to comprehend some speech without adaptation and would better understand speech with improved amplification. For these reasons, the Board finds the September 2010 medical opinion from Dr. A.L.B. contradictory and therefore of little probative weight. In April 2013, the Veteran submitted another audiological evaluation and medical opinion from Dr. A.L.B. The September 2010 and April 2013 reports are essentially identical, except for the April 2013 report included an audiological evaluation and omitted the portion of the September 2010 opinion which found that the Veteran should be evaluated for new amplification to help him better understand speech. Further, Dr. A.L.B.'s April 2013 puretone threshold results were significantly higher than in past VA examinations dated September 2008, February 2010, and March 2013. Moreover, in the VA examination dated 2008, 2010, and 2013, word recognition scores have been, respectively, 40, 64, and 68 percent in the right ear, and 32, 40, and 75 percent in the left ear. However, Dr. A.L.B.'s evaluation noted word recognition scores as 36 percent in the right ear and 24 percent in the left ear. The Board finds that these scores are inconsistent with the other medical evidence of record, especially the March 2013 VA examination report which was conducted only one month prior. Finally, the authenticity of Dr. A.L.B.'s report is also called into question. In a VA Hearing Loss and Tinnitus Disability Benefits Questionnaire, purportedly completed by Dr. A.L.B. on behalf of the Veteran, it appears that the portion prior to the Veteran's name has been whited-out. For these reasons, the Board finds the April 2013 medical opinion from Dr. A.L.B. to be of little probative value. Weighing against the Veteran's claim for a TDIU is a February 2010 VA examination report where the VA examiner conducted an audiological evaluation and opined that the Veteran's severe bilateral hearing loss and tinnitus would cause "marked" difficulty communicating in all environments. Tinnitus was noted as disrupting the sleep cycle which caused difficulty concentrating in quiet environments. The Board finds that although the February 2010 VA examiner found that the service-connected disabilities would caused marked difficulty communicating and concentrating, the VA examiner did not opine that the Veteran was unable to secure or follow a substantially gainful occupation. Further weighing against the Veteran's claim for a TDIU is a September 2012 VA general medical examination report. During the evaluation, the Veteran reported that he stopped working "two years ago" because of hearing loss. The VA examiner stated that the Veteran worked until he was 78 years old (i.e., 2010) and had significant hearing loss. The VA examiner noted that the Veteran had some difficulty understanding the questions during the evaluation. The Board finds that the September 2012 VA examination report weighs against the Veteran's credibility in that he originally claimed, in his January 2010 VA Form 21-8940, that he stopped working full-time in 1987, and stopped working part-time in 1993 due to his hearing loss. However, during the September 2012 VA evaluation, the Veteran reported that he stopped working in 2010 due to his hearing loss. The Board finds that this evidence demonstrates that the Veteran was able to obtain substantially gainful employment despite his service-connected disabilities as evidence by him working from 2008 to 2010, at which point the Veteran was assigned an 80 percent disability rating for hearing loss and a 10 percent rating for tinnitus. The Veteran was afforded another VA audiological examination in March 2013, which further weighs against the claim for a TDIU. After conducting an interview with the Veteran, administering an audiological examination, and after review of the claims file, the VA examiner opined that, with his hearing aids, the Veteran was able to carry on a conversation in low noise conditions. It was further noted that the Veteran's hearing loss and tinnitus should not prevent him from obtaining and performing employment for which he is otherwise qualified. The Board finds the March 2013 VA examination to be highly probative as to the Veteran's claim for a TDIU. The March 2013 VA examination was thorough and the opinion rendered was supported by an explanation and discussion of symptoms after a review of the claims file. The March 2013 VA examiner explained that the Veteran was not prevented, solely due to his service-connected disabilities, from obtaining and performing substantially gainful employment. In May 2013, the RO requested a VA medical opinion to address the discrepancies between Dr. A.L.B.'s purported findings and medical opinion and that of the previous VA examination reports. The May 2013 VA examiner reviewed the claims file and CPRS (Computerized Patient Records System) and noted that the Veteran had undergone VA audiograms by four different VA audiologists over the last five years. The VA examiner concluded that audiometric thresholds were unchanged from 2008 to 2013. It was noted that only after the Veteran received a negative rating did he seek a private audiological opinion. Further, because of the fact that the Veteran's thresholds seemingly deteriorated in one month from March 2013 (VA examination) to April 2013 (Dr. A.L.B.'s report), when they had not changed from 2008 to 2013, the May 2013 VA examiner opined that the results from Dr. A.L.B. were false and should not be accepted as evidence. The Board finds the May 2013 VA medical opinion to be well-reasoned and consistent with the overall disability picture. Although the May 2013 VA examiner did not render an opinion as to the Veteran's employability, the May 2013 VA medical opinion and supporting rationale shows that the data and assumptions of worsening upon which Dr. A.L.B. relied are factually inaccurate. As Dr. A.L.B. relied upon inaccurate data and inaccurate factual assumptions of worsening that is inconsistent with, and outweighed by, the other evidence of record, including objective test results, the Board finds the opinion of Dr. A.L.B. to be of minimal probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). In adjudicating the Veteran's TDIU claim, the Board has considered the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue under 38 C.F.R. § 4.16(b). The Veteran has reported working in a variety of different environments, including as a product service trainer and window repairman. He has three years of college level education. He has also reported working at an unspecified job until 2010. See September 2012 VA examination report. The Veteran has stated that he plays golf socially once a week and considers himself in good health. See March 2013 VA examination report. The Board finds that the weight of the evidence of record demonstrates that the Veteran is able to carry conversations in low noise conditions and that he is not prevented, solely due to his service-connected disabilities, from obtaining and performing employment for which he is otherwise qualified. This determination has been made without considering his advancing age (81 years old) and the effects of his nonservice-connected disabilities. 38 C.F.R. § 4.19. Speech recognition testing, which is part of the schedular rating criteria for hearing loss disability, recognized the interference with conversation due to inability to discriminate speech, including missing words in conversation. See 38 C.F.R. §§ 3.385, 4.85 (2012). Accordingly, based on the weight of the evidence of record discussed in detail above, the combination of the Veteran's service-connected bilateral hearing loss and tinnitus disabilities have not been shown to render the Veteran unable to gainfully pursue and perform employment for any period. Overall, both prior to and after February 17, 2010, the Board concludes that the evidence of record is against the award of a TDIU rating on the basis that the Veteran's hearing loss and tinnitus would not prevent him from obtaining and performing employment for which he is otherwise qualified. As noted above, the Veteran was able to work until 2010 despite having a combined disability rating of 80 percent for bilateral hearing loss and tinnitus. The Board finds that the weight of the competent, credible, and probative evidence does not demonstrate an inability to secure or follow a substantially gainful occupation due to the combination of the service-connected bilateral hearing loss and tinnitus disabilities. As the preponderance of the evidence is against the TDIU claim, the benefit of the doubt doctrine is not applicable and the appeal for TDIU must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER A TDIU is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs