Citation Nr: 1324699 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 07-27 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Darla Lilley, Attorney ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010 and October 2012, the Board remanded the matter for further evidentiary development, which has been completed. FINDING OF FACT The Veteran is not precluded from substantial and gainful employment solely due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A July 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's VA medical treatment records have been obtained; he did not identify any outstanding private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication that the Veteran receives disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2011 and December 2012. The most recent examination provided an adequate opinion as to whether or not the Veteran's service-connected disabilities preclude substantially gainful employment. The examination is sufficient for purposes of determining entitlement to a TDIU. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the 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; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Law and Regulations Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for hearing loss (50%); anxiety disorder (30%); and chronic otitis media (10%), for a combined rating of 70 percent. Since his combined rating is 70 percent, and one disability is ratable at 40 percent or more, the initial criteria for schedular consideration for TDIU are met. The VA clinical notes and examinations of record reflect that the Veteran was employed in pipeline construction until approximately August 2011. In November 2011, the Veteran stated to a VA examiner that he had "worked past retirement age because he likes to keep active." The examiner found that the Veteran's anxiety was "mild" and did not preclude substantially gainful employment. An ear disease examination, also conducted in November 2011, noted that there had been no change in the Veteran's chronic otitis media since November 2007, and chronic otitis media did not preclude employment. A VA audiology examination also found that the Veteran's hearing loss did not render the Veteran unemployable. However, since none of the examiners supported their findings with adequate rationale, the examinations are insufficient evidence upon which to base a determination of entitlement to a TDIU. The Veteran underwent another series of VA examinations in December 2012. An audiogram conducted during the VA audiology examination showed severe bilateral mixed hearing loss. However, the examiner found that the Veteran's hearing loss did not preclude him from engaging in substantially gainful employment, because the Veteran should be able to work "with amplification and reasonable accommodations as specified in the Americans With Disabilities Act." In fact, "employment would be more than feasible in a loosely supervised situation" with "state of the art amplification and/or assistive technology." The examiner also noted that it is "rare that hearing loss alone would render an individual unemployable." The Veteran has been supplied with hearing aids by VA. An ear disease examination noted that the Veteran had no active ear infection. The Veteran communicated "well" with hearing aids, and there was no indication his history of chronic ear disease impacted his employability. The examiner also noted that the Veteran's chronic otitis media would not affect his ability to work in pipeline construction. During a VA mental disorders examination, the Veteran stated that he had quit his job in approximately August 2011, because he was "tired of it." He had spent very little time at home over the past 45 years, and he did not want to travel anymore. The only place for him to work in pipeline construction was in a city some distance from his home, and there were few employment opportunities near his home. After conducting a diagnostic interview, the examiner found that the Veteran's mental disorder resulted in mild and transient symptoms, which impaired his occupational and social functioning only in times of significant stress. These symptoms were not of such severity that they precluded the Veteran from engaging in substantially gainful employment. The Veteran's service-connected disabilities do not preclude all forms of gainful employment. All of the VA examinations of record have found that his service-connected disabilities are not of such severity that they prevent him from working. There is no contradictory evidence in the record. The clinical notes are consistent with the findings on examination. The Veteran has submitted no lay evidence in support of his claim; in fact, during his December 2012 mental disorders examination, he stated that he was not working because he was tired, wished to spend more time at home, did not want to travel, and there were few employment opportunities in his area. At no time did he indicate that any service-connected disability played a role in that decision. The record does not show that the Veteran has any significant occupational limitations as a result of his service-connected disabilities. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and entitlement to a TDIU is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs