Citation Nr: 1324722 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 12-29 505 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision by the RO which denied the benefit sought on appeal. The Board remanded the appeal for additional development in April 2013. 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's service-connected disabilities include bilateral sensorineural hearing loss; rated 50 percent disabling and tinnitus, rated 10 percent disabling. The combined rating is 60 percent. 2. The Veteran has a high school education, and worked as a car salesman, service manager and as a Marshall for a circuit court before retiring in 2002, at age 69. 3. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA examination during the pendency of this appeal, and was afforded an opportunity for a personal hearing, but declined. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Additionally, the case has been subject to a prior Board remand. The AMC associated all available treatment records with the claims folder and scheduled the Veteran for a VA audiological examination to determine whether his hearing loss and tinnitus precluded employment. The Board finds the June 2013 VA audiological examination was thorough and adequate upon which to base a decision with regard to the issue on appeal. The audiologist interviewed and examined the Veteran, elicited a history of his symptoms and residual problems, and provided the information necessary to evaluate his claim for TDIU under the applicable rating criteria. Given the foregoing, it is concluded that there has been substantial compliance with the Board's remand instructions. Under the circumstances, the Board finds that the AMC has substantially complied with the April 2013 remand instructions, and that no further action is necessary in this regard. 38 C.F.R. § 3.655 (2012); Routen v. West, 142 F.3d 1434, (Fed. Cir 1998); see also, D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue addressed in this decision is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Under the applicable criteria, a total disability rating for compensation based upon individual unemployability 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) (2012). 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Id. However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). TDIU In this case, the Veteran's two service-connected disabilities are derived from common etiology or a single accident, i.e., acoustic trauma to the ears. Therefore, under the above cited regulations, all of his disabilities may be considered as a single entity resulting from a common etiology. 38 C.F.R. § 4.16(a). Thus, the combined 60 percent rating, for purposes of consideration of TDIU, is viewed as a single disability rated 60 percent disabling and satisfies one element of the schedular criteria for a total disability rating based on individual unemployability. However, the evidence must also show that the Veteran is, in fact, unable to secure or follow a substantially gainful occupation as a result of the single service-connected disability. In this regard, the Board finds that the preponderance of the medical evidence of record shows that the service-connected disabilities do not result in individual unemployability. 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. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has a high school education and worked as a salesman and service manager for a car dealership for many years prior to his employment as a Marshall for a circuit court where he retired at age 69, after working in that position for 12 years. The Veteran contends that he has difficulty hearing in noisy environments and that he is unable to work because of his hearing loss and tinnitus. As noted above, he is service-connected for bilateral defective hearing, rated 50 percent disabling and tinnitus, rated 10 percent disabling, and his combined rating is 60 percent. In June 2011, a VA audiologist opined, in essence, that while the Veteran's hearing loss and tinnitus were significantly disabling, they did not render him unemployable. The favorable evidence in this case, consists of a letter from a private audiologist, received in October 2011, who opined that the Veteran's hearing loss and tinnitus "have essentially rendered him unemployable." While the audiologist provided a few examples of the problems facing the Veteran's employment opportunities, noting that he needed to avoid working in noisy environments which would prevent verbal communication face-to-face or by phone, and that other types of employment could pose safety issues, he did not opine that the Veteran was precluded from all forms of employment. Rather, he stated that the Veteran's hearing loss would significantly impair his employability "in most job assignments with or without adaptation and or amplification." Concerning the private opinion, the Board notes that while the audiologist indicated the types of employment that the Veteran was precluded from working due to his hearing impairment, he did not report that all forms of substantially gainful employment was precluded. Furthermore, the audiologist did not offer any explanation or analysis for his conclusory statement that the Veteran's employment opportunities were significantly impaired "with or without adaptation and or amplification." The fact that the Veteran was able to respond to questions by VA examiners during the pendency of this appeal, shows that he has functional hearing with the use of aids. Additionally, the doctor did not specifically state that the Veteran would be precluded from all forms of sedentary type of employment. He only stated that it would be difficult for him to communicate by phone or face to face. With respect to face to face communication, the record demonstrates that the Veteran on multiple VA examinations was able to communicate face to face. He was able to answer questions asked by the examiners. This was evidenced by the fact that the examiner elicited a detail history from the Veteran. With respect to a finding that the Veteran had an inability to communicate by phone, it is clear that all sedentary jobs do not require the use of a phone. In April 2013, the Board found that the June 2011 VA audiologist opinion was too general and without analysis, and that the private opinion was somewhat limited in scope and did not address whether sedentary employment was possible. Therefore, the board remanded the appeal for further examination. In June 2013, the Veteran was afforded a VA examination to determine the severity of his hearing impairment and whether his hearing loss and tinnitus precluded all forms of substantially gainful employment. The examiner indicated that the claims file was reviewed and included a description of the Veteran's employment and medical histories, current complaints and symptoms, and a discussion of the Veteran's limitations for various types of employment. The examiner indicated that while the Veteran would have some difficulty in jobs requiring regular use of phones or more than light physical activities due to hearing loss, tinnitus and balance problems, he reported that sedentary employment was still feasible. In this case, the Board finds that the preponderance of the evidence of record shows that while the Veteran has a significant hearing impairment, he is not deaf and is able to hear conversational speech with the use of hearing aids. While his hearing loss and tinnitus would affect some types of employment requiring extensive use of a phone that is not the only method of communication utilized in today's workforce. The Veteran has extensive work experience in the automotive industry, initially doing minor maintenance on cars and later as a car salesman and service manager, and was a circuit court Marshall. Obviously, his hearing loss would be a major impediment as a court room Marshall. However, with his extensive experience and knowledge in the automobile industry, and the advancements in communications technology, i.e., e-mails, instant messaging, texting and phone amplification devices, his hearing impairment would not preclude all forms of sedentary employment. The Veteran has reported that he has a significant history of conducting desk work. His service-connected hearing loss and tinnitus would not preclude him from performing desk work or sedentary work. The Board has considered the Veteran's lay statements and the reported difficulties that he has due to his hearing loss and tinnitus. While the Veteran is competent to attest to factual matters of which he has first-hand knowledge, as a layperson, he is not competent to offer a medical opinion as to the degree of severity of his service-connected disabilities. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Board cannot consider the Veteran's age in determining employability, the fact that he is 80 years old and has a number of significant nonservice-connected disabilities, including diabetes mellitus, hypertension, arrhythmia, detached retina in the left eye, chronic kidney disease and anxiety with depression, certainly limits his prospects for finding or maintaining employment. The evidence also showed that he fractured his left leg in 2012, has a total right knee replacement, needs replacement of the left knee and tore both rotator cuffs, and that his general state of health is somewhat poor. The Board does not dispute that the Veteran experiences some industrial impairment due to his service-connected disabilities. However, the degree of impairment is adequately reflected by the combined schedular rating of 60 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record fails to show that the Veteran's service-connected disabilities, either singularly or in combination, are so severely disabling as to render him unable to secure or follow substantially gainful employment. The available evidence of record tends to show that the Veteran is able to perform sedentary type of work and he has a past history of performing sedentary type of work (desk work). Finally, with respect to the representative's assertion that the June 2013 VA examination was inadequate and did not comply with the April 2013 remand instructions, the Board finds that there was substantial compliance with the remand directives and that no useful purpose would be served by remanding the appeal for another examination. The examiner reviewed the claims file, elicited the Veteran's complaints and medical history, and addressed the specific question as to whether his hearing loss and tinnitus precluded all forms of substantially gainful employment. The examiner's opinion was based on his review of the entire record, the severity of the Veteran's hearing impairment, and the Veteran's prior employment history, which he noted, included "lots of desk work." The examiner acknowledged that while the Veteran would have some difficulty talking on the phone or in jobs requiring any significant lifting or pulling, sedentary employment was still feasible. The Board recognizes that while the new computerized VA examination reports are cumbersome and sometimes difficult to read, the examiner in this case provided the necessary information as requested by the Board, and that there was substantial compliance with the remand instructions. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs