Citation Nr: 1325080 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-11 925 ) 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 C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from January 1958 to January 1961 and from November 1962 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's application for TDIU. The Veteran's claim was remanded for further development by the Board in October 2012. The requested development having been completed, the matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran meets the percentage requirements for TDIU, as he has a single service-connected disability rated at 60 percent or more. 2. The Veteran's service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in January 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The letter informed the Veteran of what the evidence must show to establish entitlement to TDIU. He was informed of what evidence he should submit and what VA would attempt to obtain on his behalf. He was informed that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter further informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. In addition, the Veteran was provided with the evidence necessary to establish a total rating due to individual unemployability resulting from service-connected disabilities. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of TDIU. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and post-service VA treatment records are in the file. Records from the Social Security Administration (SSA) have been requested, but in multiple responses (most recently in July 2009) SSA has indicated that no records are available. Private medical records identified by the Veteran have been associated with the claims file, to the extent possible. In that regard, pursuant to the Board's October 2012 remand, the Veteran was provided with a letter in October 2012 requesting that he provide authorization for VA to obtain any relevant private treatment records or for the Veteran to provide such records directly to VA. The Veteran did not provide any authorization or records in response to this letter. Furthermore, the Veteran does not otherwise claim there is additional evidence not of record that would help his claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in December 2012. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's service-connected disabilities and the affect these disabilities have on his employability. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the October 2012 letter to the Veteran, the December 2012 VA examinations, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, the Board notes that the Veteran's service-connected disabilities include an 80 percent rating for bilateral high frequency hearing loss; a 10 percent rating for chronic low back pain with degenerative joint disease; a 10 percent rating for hiatal hernia, mildly symptomatic; a 10 percent rating for scar, forehead, face and left cheek, disfiguring; a 10 percent rating for tinnitus; and noncompensable ratings for calcified tendinitis, right elbow; residuals, arthrodesis, right great toe; and bilateral otitis media with external otitis. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. The Veteran asserts that his service-connected bilateral hearing loss, low back disability, hiatal hernia, and tinnitus are the primary causes of his asserted unemployability, with the hearing problems being the most significant. The evidence indicates that the Veteran voluntarily retired from employment as an aircraft inspector in June 2003. Essentially, the Veteran contends that his difficulty hearing coworkers was the reason that he chose to retire and why he should be considered unemployable. The Veteran previously was denied entitlement to TDIU in a rating decision from February 2004, at which time he essentially claimed the same basis for an inability to work. VA treatment records note ongoing treatment for hearing problems (including the provision and maintenance of hearing aids), low back pain, and less frequently for his other service-connected disabilities. During a March 2009 VA examination, the Veteran reported ongoing low back pain that he rated as 8 out of 10, as well as frequent burning of the right great toe and occasional problems swallowing. The Veteran denied right elbow problems. On examination, there was no evidence of painful motion, weakness, or associated problems in any of the tested joints and there were no signs of anemia or other problems associated with the Veteran's hiatal hernia. During separate contemporaneous VA examinations, the Veteran discussed ear and hearing problems related to his service-connected disabilities. During none of these VA examinations, however, was the Veteran's employability discussed, other than to note that he was retired. Similarly, February and March 2009 VA examinations of the Veteran's ears and hearing, respectively, failed to discuss the impact of the Veteran's service-connected disabilities on his employability. In support of his claim, the Veteran submitted an October 2009 letter from a private audiologist. The audiologist discussed the Veteran's service-connected hearing loss and tinnitus and stated that he had been "forced to retire" from his last job (as a flight inspector) because his hearing loss made it impossible to understand the pilots through communication headsets. The audiologist indicated that the Veteran's speech discrimination scores using the Maryland CNC list were 36 percent and that score and others were indicative of difficulty with speech understanding. As such, the audiologist concluded that the Veteran's severe hearing loss and tinnitus rendered him essentially unemployable. He would need to avoid working in any environment with noise, which could exacerbate his hearing loss. In addition, the audiologist indicated that the hearing problems would prevent both face-to-face interaction and discussion via telephone and pose a significant risk in a job setting requiring transportation, driving, or heavy or moving machinery. In conclusion, the audiologist stated that the Veteran's hearing loss, "would significantly impair his employability in most job assignments with or without adaptation." The Veteran was afforded a VA examination in October 2012. The examiner noted review of the claims file. The Veteran reported that he had stopped working in 2003 as a flight inspector and could not work in that type of job at present due to difficulty hearing. The examiner concluded, "It is my opinion that this gentleman has decreased ability to do his previous work even though he retired in 2003. He has decreased ability to do his previous work at the present time because of his poor hearing." The Veteran was afforded a VA audio examination in December 2012. The Veteran reported that his greatest difficulty with hearing was in a crowded room or when people were not facing him. The Veteran also discussed his bilateral, daily, intermittent tinnitus that did not interfere with his daily activities and that he had learned to ignore. As to his former employment, the Veteran noted retiring in 2003 due to his hearing loss because he had difficulty communicating with the pilots when they were not facing him during conversations. In those circumstances, he would have to ask the pilots to repeat themselves. The Veteran denied having been approached by his employer or co-workers about his hearing loss or ability to perform his job. Rather, the problems were ones noticed personally by the Veteran. The Veteran denied having sought any employment after his retirement in 2003 and was not currently seeking employment. Based on the foregoing, the examining VA audiologist stated: [The Veteran] admits that he voluntarily retired from his job and reports that his tinnitus does not interfere with his daily activities. With amplification and reasonable accommodations as specified in the Americans with Disabilities Act, this hearing loss alone should not significantly affect vocational potential or limit participation in most work activities. Employment would be more than feasible in a loosely supervised situation. The Veteran was afforded another December 2012 VA examination for his other service-connected disabilities. The examiner noted review of the claims file and the Veteran's service-connected disabilities, including hearing loss. As to the Veteran's service-connected facial scars, while these were disfiguring they were normally pigmented; not elevated, depressed, or adherent; 1.5 cm by 0.1 cm in size; and not painful or unstable. Based on the foregoing, the examiner concluded that the Veteran's scars did not impact his ability to work, which is consistent with the Veteran's reports. As to the Veteran's low back, he had forward flexion to 70 degrees with pain onset at that point and without any additional limitation of motion on repetition. The low back problems would affect the Veteran's ability to work, specifically the problems would prevent him from working in positions that required repetitive bending or heavy lifting. The examiner did not find that any of the Veteran's other disabilities affected his ability to work. Thus, there is conflicting medical evidence as to the effect that the Veteran's service-connected disabilities, primarily his bilateral hearing loss disability, have on his ability to work. On the one hand, the October 2009 private audiologist's opinion letter and the October 2012 VA examination report suggest that the Veteran would be unable to or, at a minimum, would have considerable difficulty performing his previous job as an aircraft inspector because of his difficulty hearing. The Board finds these opinions of extremely limited probative value. In that regard, the October 2012 VA examiner did not provide any rationale for the opinion provided. The October 2009 audiologist's opinion stressed the fact that the Veteran's hearing problems would "prevent verbal communication face-to-face as well as by telephone." Clearly this statement is hyperbolic in nature, given that the Veteran has undergone multiple VA examinations, as well as at least one private audiological evaluation, and in each instance has been able to converse with the examining medical professional about his hearing loss and other problems and otherwise verbally communicate his claims and contentions. From this evidence, it is clear that the Veteran's current bilateral hearing loss disability does not "prevent" face-to-face verbal communication. Moreover, the letter indicated that the Veteran had been forced to retire due to his hearing problems, whereas the Veteran has conceded on multiple occasions that his retirement was voluntary and not based on any actual or prospective action by his employer. As such, the Board affords the above October 2009 and October 2012 medical opinions extremely limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that factors affecting the probative value of a medical opinion are whether the opinion is based on sufficient facts or data, is the product of reliable principles reliably applied to the facts, and the reasoning employed by the expert) ; see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record). By contrast, the December 2012 VA examiner provided a thorough rationale for the opinions provided that is supported by the evidence of record. The Board acknowledges the argument of the Veteran's representative that the examiner's statement contending that employment would be feasible in a "loosely supervised situation" is not entirely clear on its face. However, the remainder of the opinion clearly delineates that the use of hearing aids and reasonable accommodations should not significantly affect vocational potential or limit participation in most work activities. As discussed above, the Veteran remains able to effectively communicate in person, as evidenced by the multiple VA and private examinations of record. Thus, the VA examiner's conclusion is consistent with the evidence of record. This opinion was based on consideration of the claims file, the Veteran's representations, other VA and private examination reports, and other evidence of record. In light of the foregoing, while the Board finds the December 2012 examiner's reference to employment in a "loosely supervised situation" somewhat unclear, read in context her conclusion in the entirety is clear, thorough, and supported by the evidence of record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale). As such, the Board affords the December 2012 VA examination report significant probative weight. The Board recognizes that the December 2012 VA general medical examiner concluded that the Veteran's service-connected low back disability precluded him from employment requiring repetitive bending and heavy lifting. There is no indication or contention, however, that such activities were required of the Veteran in his prior job as an aircraft inspector. To the extent that such activities were required, the Board notes that there are numerous areas of employment that could accommodate limitations in bending and lifting, as well as difficulty hearing. In addition, the Board has considered the Veteran's contentions that he is unemployable due to his service-connected disabilities and that no employer would hire him due to his hearing, back, and other problems. That said, the Veteran concedes that he has not sought any employment since voluntarily retiring from his last job in 2003 and is not currently seeking employment. Thus, the Veteran's contentions that no employer would hire him due to his back, hearing, and other service-connected disabilities is wholly speculative in nature and cannot serve as a basis for granting TDIU benefits. See generally Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection) In closing, the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability. However, the 90 percent schedular evaluation currently in effect recognizes significant industrial impairment resulting from his disorders. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs