Citation Nr: 1328409 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-30 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from January 1951 to October 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and July 2010 rating decisions of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office. In October 2008, the RO continued a 10 percent rating for bilateral hearing loss, and denied service connection for tinnitus, vertigo, traumatic brain injury, and otologic disease. In July 2010 the RO denied the Veteran's TDIU claim. The Veteran testified before a Decision Review Officer (DRO) sitting at the RO in December 2011, and before the undersigned Veterans Law Judge in August 2012 via videoconference. Copies of the hearing transcripts are of record. During the hearings, the DRO and the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In a September 2012 decision, the Board denied service connection for otologic disease claimed as ear pain; a peripheral vestibular condition, claimed as vertigo; as well as a rating in excess of 10 percent for bilateral hearing loss. The Board also granted the claim for service connection for tinnitus, and remanded to the RO via the Appeals Management Center (AMC), the claims of service connection for residuals of a traumatic brain injury claimed as headaches, and TDIU. In a February 2013 rating decision the RO effectuated the Board's grant of service connection for tinnitus, awarding the Veteran a 10 percent rating effective from June 30, 2008. The RO also granted service connection for traumatic brain injury rated as 40 percent disabling effective from June 30, 2008. Then in May 2013, the RO granted service connection for posttraumatic headaches evaluated at 0 percent disabling, effective from June 30, 2008. As a result, the sole remaining issue on appeal before the Board is entitlement to 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. The Veteran's service-connected disabilities are residuals of traumatic brain injury, rated as 40 percent disabling, bilateral hearing loss and tinnitus each separately rated as 10 percent disabling, and posttraumatic headaches, rated at the noncompensable (i.e., zero-percent) level, for a combined 50 percent rating. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for a TDIU, including for referral of this claim for consideration of entitlement to this benefit on an extraschedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The claims file reveals VCAA compliance by way of letters dated in March 2010 and March 2012 regarding a TDIU. The RO advised the Veteran of the evidence needed to substantiate this claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). Following the July 2010 denial of the claim, it was subsequently readjudicated in the August 2011 statement of the case (SOC), and in May 2012 and June 2013 supplemental statements of the case (SSOC's), thereby curing any timing defects in the notice. The RO has obtained the Veteran's service treatment records, private records, and VA treatment records. The RO also has provided him with VA examinations to assess his service- connected disabilities, including most recently in April and May 2013. The Board remanded the claim in September 2012 for additional development. The RO/AMC complied with the directives of the Board remand in terms of having him undergo the necessary VA compensation examination for opinions regarding his employability. Stegall v. West, 11 Vet. App. 268 (1998). As such, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. TDIU The Veteran asserts that because of his service-connected disabilities, particularly his hearing loss and tinnitus, he has been unable to work since 2009, when he was employed as a bus driver, and, therefore, he is entitled to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 - provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). But even if a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), he still may be entitled to a TDIU on an extraschedular basis under § 4.16(b), provided he is unable to obtain or maintain a substantially gainful occupation by reason of his service- connected disabilities. Where a veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director of C&P for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran currently has four service-connected disabilities, traumatic brain injury, rated as 40 percent disabling; bilateral hearing loss and tinnitus each separately, rated as 10 percent disabling; and a noncompensable or 0 percent rating for posttraumatic headaches. The combined rating for these disabilities is 50 percent. As such, the Veteran does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the ratings do not satisfy the percentage requirements. Therefore, a TDIU rating is not assignable under 38 C.F.R. § 4.16(a). Nevertheless, as mentioned above, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of his service-connected disabilities. 38 C.F.R. § 4.16(b). Factual Background In a February 2010, VA Form 21-4192, VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from an employer, a bus company, it was reported that the Veteran had been employed as a bus driver from 1998 to March 2009. He last worked in November 2008, and it was reported that he was not working because he was medically unable to drive a bus. In an April 2010 VA audiological examination, it was reported that the Veteran had hearing loss, left ear worse than right. The diagnostic summary revealed that the Veteran had mild to moderate right ear hearing loss, and moderately severe to severe hearing loss in the left ear. In an April 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in addition to data previously reported concerning his unemployment, he reported that his loss of hearing prevented him from securing or following substantially gainful employment. He reported a high school education. In a VA Form 21-4138, Statement in Support of Claim, received in April 2010, the Veteran reported that he had a blurred vision attack in November 2008 while driving a bus. He reported that clinical findings revealed he had three blocked arteries and a cardiologist would not sign papers for him to return driving a bus. He stated that subsequently a VA physician had stated in papers that the Veteran was a poor risk for driving students. VA outpatient treatment records through 2011 show that the Veteran received treatment for several physical and medical problems including but not limited to coronary artery disease, diabetes mellitus, cataracts, peripheral vascular disease, and degenerative joint disease of the knees. In April 2012, the Veteran underwent a VA audiologic examination as well as an ear examination. The Veteran's bilateral sensorineural hearing loss and tinnitus were reported. The examiner reported that the Veteran's hearing loss and tinnitus did not impact ordinary conditions of his daily life, including his ability to work. The Veteran's gait was noted as normal. Romberg test, Dix-Hallpike test for vertigo, and limb coordination test were also normal or negative. The examiner indicated that the Veteran does not have true vertigo and that his off balance feeling is probably vascular in origin. In a November 2012 VA neurology examination, it was reported that the Veteran had a traumatic brain injury. Testing revealed mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. Subjective symptoms not interfering with work included mild or occasional headaches and mild anxiety. The Veteran had headaches four times per year that lasted 15 to 20 minutes. It was reported that the Veteran also had one or more neurobehavioral effects that did not interfere with workplace interactions. The Veteran's hearing loss and headaches were attributed to his traumatic brain injury. It was indicated that the residual conditions related to the traumatic brain injury did not impact his ability to work. The examiner stated that the Veteran's headaches, profound deafness, and cognitive difficulty in the aggregate would make work necessitating conversation or intact cognition difficult. It was then stated that the Veteran's posttraumatic headaches did not prevent employment and he had cognitive function and hearing loss. In an April 2013 VA medical examination for headaches, it was reported that the Veteran had tension headaches three times per month, and that when they occurred he generally closed his eyes and relaxed. He also used aspirin for treatment and they were on the left side of his head. It was reported that the headaches did not impact his ability to work. A VA psychiatric examination in May 2013 revealed no psychiatric diagnosis, although some mild memory loss was reported. Voluminous VA treatment records in the Veteran's electronic ("Virtual VA") file through May 2013, show that he received treatment primarily for nonservice-connected disorders, including for coronary artery disease, cataracts, and a total right knee replacement. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board has had the opportunity to review the entire record and concludes that in this case, the evidence of record fails to show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected traumatic brain injury, bilateral hearing loss and tinnitus, and posttraumatic headache disabilities. It is noted that the Veteran's subjective symptoms from his traumatic brain injury have clinically been described as mild, as well as his headaches have also been described as mild. Importantly, it must also be mentioned that medical opinions provided in the recent past have consistently indicated that the Veteran's service-connected disabilities, his traumatic brain injury, bilateral hearing loss and tinnitus, and headaches did not did not impact his ability to work. The Board assigns significant probative value to this evidence. The Board is aware that it has also been reported at one point clinically, that the Veteran's traumatic brain, headache, and hearing loss disabilities in the aggregate would make work difficult, but there is no medical evidence at all that shows these disabilities make it unable for the Veteran to secure or follow a substantially gainful occupation. The clinical evidence, particularly VA outpatient treatment records from the recent past, show that the Veteran has several nonservice-connected physical disabilities that potentially affect his employability. In fact the Veteran has himself reported that his nonservice-connected heart problems, diagnosed as coronary artery disease, was the cause for his inability to return to his last employment as a bus driver back in late 2008. So it must be said that the Veteran's other nonservice-connected disabilities complicate his functional ability, at least in terms of employability. While the Veteran's service-connected disabilities are significant in terms of their impact on his ability to function. To the extent the service-connected traumatic brain injury, hearing loss, tinnitus, and headache disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. The Board has considered the Veteran's lay statements and testimony from his personal hearing at VA. It must also be mentioned that the Veteran's assertions, albeit some of them contradictory, represent the only evidence of record establishing that his service-connected disabilities, alone, render him unable to secure or follow substantially gainful employment. These assertions may not be considered competent, however, as the record does not reflect that he possesses a recognized degree of medical knowledge to provide a medical opinion on this determinative issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, referral for extraschedular consideration is not appropriate and a TDIU rating is not warranted. See 38 C.F.R. § 4.16(b). For these reasons and bases, the Board concludes that a preponderance of the evidence is against this claim for a TDIU, including on an extraschedular basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3;Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990). ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities, to include on an extraschedular basis, is denied ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs