Citation Nr: 1328456 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-13 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for radicular pain of the left lower extremity. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from May 1971 to May 1974. He appealed to the Board of Veterans' Appeals (Board/BVA) from January 2007 and June 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2007 rating action, the RO, in pertinent part, denied the Veteran's claims of entitlement to service connection for tinnitus, a back disability, and radicular pain of his left lower extremity. In that same rating action, the RO also determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for a left wrist disability. He filed a notice of disagreement (NOD) later in January 2007. In the June 2008 rating action, the RO denied his claim for a TDIU. In July 2008, he filed an NOD concerning the denial of this additional claim. In January 2010 the RO send him a statement of the case (SOC) listing the following issues: (1) entitlement to service connection for tinnitus, (2) entitlement to service connection for a back disability, (3) entitlement to service connection for radicular pain of the left lower extremity, (4) whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for a left wrist disability, and (5) entitlement to a TDIU. In March 2010, in response, the Veteran submitted a substantive appeal (VA Form 9) indicating he was only appealing issues numbered 1, 3, and 5, so seemingly limiting his appeal to only these specific claims. See 38 C.F.R. § 20.202 (2012); Ledford v. West, 136 F.3d 776, 770-80 (Fed. Cir. 1998). However, in discussing his claim for service connection for radicular pain of his left lower extremity (issue number 3), he also discussed his claim for service connection for a back disability (number 2). Thus, the only claim not before the Board is the new-and-material-evidence claim (number 4). 38 C.F.R. §§ 20.200, 20.302, etc. In any event the claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide these claims so the Veteran is afforded every possible consideration. In an October 2005 Statement in Support of Claim (on VA Form 21-4138), the Veteran indicated he was receiving disability benefits from the Social Security Administration (SSA) because of his back disability, so on account of one of the conditions at issue in this appeal. In February 2007, he submitted an award letter from the SSA, dated in October 2005. In August 2006, so in the interim, the RO resultantly had requested records from the SSA. While SSA records are not controlling on VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, VA must try and obtain the records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). In a March 2007 reply, the SSA indicated the Veteran's folder had been forwarded to the district office. However, it does not appear the RO subsequently contacted the district office to obtain the folder containing this evidence. Thus, the RO must continue to attempt to obtain these SSA records, including a copy of the decision regarding the Veteran's claim for disability benefits and all medical records considered in the determination of his entitlement to the benefits, prior to deciding this appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Tetro v. Gober, 14 Vet. App. 100, 110 (2000) (holding that VA has a duty to request information and pertinent records from other Federal agencies, when on notice that such information exists). VA has a statutory duty to obtain these records. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) also has held that VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim. See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). But see, too, Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (emphasizing that VA need only obtain relevant SSA records, which, according to 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). As for the Veteran's derivative TDIU claim, his only service-connected disability at the moment is Hepatitis C. He has had a 60 percent rating for this service-connected disability effectively since February 5, 2007. He contends that, due to his Hepatitis C, he is unable to obtain and/or maintain employment that could be considered substantially gainful versus just marginal in comparison. He points out he has to take medication to treat this disease, which causes fatigue, nausea, and vomiting. In addition, he maintains that no employer wants to hire him because there is a stigma attached to Hepatitis C in that people are afraid of "getting it." See his March 2010 VA Form 9. A TDIU 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 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In deciding whether a Veteran is unemployable and entitled to a TDIU, consideration is given to his level of education, prior work experience and training, but not to his advancing age or occupational impairment that is attributable to disabilities that are not service connected. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, 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 the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified that "[r]equiring a Veteran to prove that he is 100 percent unemployable is different than requiring the Veteran to prove that he cannot maintain substantially gainful employment. The use of the word 'substantially' suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that the Veteran prove 100 percent unemployability leaves no flexibility." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). That said, to receive a TDIU, the Veteran's service- connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Board must consider the effects of service-connected disability or disabilities in the context of the Veteran's employment history and educational background. See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992). The Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), that the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be substantially gainful versus just marginal in comparison. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991) and Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Given that the Veteran has a 60 percent disability rating for his Hepatitis C, he has a sufficient rating for his service-connected to satisfy the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU, that is, without having to instead resort to the special extra- schedular provisions of § 4.16(b). Records show he has obtained a graduate equivalency diploma (GED). In addition, he worked as a farmer until an accident in May 1989 when he was injured when attacked by a pig and thrown against a wall. He injured his back during the attack and was unable to continue working. He thereafter started receiving SSA disability benefits, so presumably because of that civilian, work-related, injury to his back. Nevertheless, in a VA medical statement dated in June 2008, Dr. D. stated that because of the Veteran's service- connected Hepatitis C and his periodic interferon treatment, his physical ability was limited. According to Dr. D., the Veteran was suitable for sedentary work that did not require a high degree of specialized training. However, it does not appear that Dr. D. took into consideration the Veteran's prior work experience in a job that had been entirely physically demanding, not sedentary. There is also a question of whether any such employment would indeed amount to substantially gainful employment and not just marginal employment in comparison. 38 C.F.R. §§ 4.16(a), 4.18. Supplemental medical comment thus is needed to assist in making this necessary determination. In regards to the Veteran's claim for service connection for tinnitus, he maintains that he developed this condition as a result of repeated exposure to extremely loud noise during his military service and consequent injury (i.e., acoustic trauma). In his March 2010 substantive appeal, on VA Form 9, he indicated that while he was in Vietnam he worked with a field artillery unit and resultantly was exposed to loud noises from "big guns" such as the 105 Howitzer. According to him, he did not have any earplugs. He claimed to have developed ringing in his ears rather immediately and to having continued to experience this since his discharge from service. His DD Form 214, Report of Separation from the Armed Forces of the United States, shows he served in the United States Army from May 1971 to May 1974. His military occupational specialty (MOS) was lineman. He received the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. He is competent to describe what he experienced while in the military because this concerns his firsthand knowledge of a factual matter. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Ultimately, however, the Board will additionally have to determine whether his lay testimony concerning this also is credible, so ultimately probative, when also considered along with the other lay and medical evidence of record. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine whether the evidence also is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible). Only if evidence is both competent and credible does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The third and final step of this inquiry requires the Board to then weigh the probative value of the proffered evidence in light of the entirety of the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). See also Baldwin v. West, 13 Vet. App. 1, 8 (1999). In the meantime, in light of his statements regarding his exposure to the loud noises during his service, and given that his MOS was linesman, the Board finds that his statements concerning his purported noise exposure in service are credible and consistent his duties and responsibilities in service. See 38 U.S.C.A. § 1154(a). In January 2010, he had a VA audiological evaluation. He said that he had first noticed tinnitus about 10 to 15 years earlier. His military noise exposure included artillery, helicopters, and high explosive rounds. His civilian noise exposure included 15 to 20 years of farming and working with hogs. VA Medical Center (VAMC) outpatient treatment records showed that, in November 2003, he had indicated he had tinnitus in his right ear. In March 2006 he had complained of unilateral tinnitus in his left ear for many years. At the conclusion of that VA audiological evaluation, the pertinent diagnosis was unilateral tinnitus in the left ear. The examiner determined, however, that given the lack of evidence of tinnitus during the Veteran's military service, his report of intermittent unilateral in the right ear in 2003 and his 2006 report of constant unilateral tinnitus in the left ear (consistent with onset being sometime between 2003 and 2006), as well as his report of onset and hearing within normal limits at time of separation from service and subsequent civilian occupational noise exposure, it was less likely than not that his tinnitus was related to noise exposure during his military service. That January 2010 VA audiological examiner's comments regarding the onset of the Veteran's tinnitus were inconsistent. On the one hand, he noted that the onset of the Veteran's tinnitus was between 2003 and 2006. However, on the other hand, he reported that, according to the Veteran, he had first noticed tinnitus about 10 to 15 years prior to that evaluation, which, if true, would have been sometime between 1995 and 2000. In addition, the examiner did not address the Veteran's contention that he had first noticed tinnitus during his service. This is especially problematic because he is considered competent to report what comes to him through his senses, including ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, a supplemental medical nexus opinion is needed to assist in deciding this claim since, once VA undertakes the effort to provide an examination in a service-connection claim, even if not statutorily obligated to, it must ensure the examination and opinion are adequate, else, notify the Veteran why can adequate examination cannot or will not be provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Contact the SSA and obtain a copy of the decision regarding the Veteran's claim for disability benefits, including all medical records considered in the determination of his entitlement to these benefits. Since these records are in the custody of a Federal department or agency, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2). So make as many requests for these records as are necessary to comply with this VA regulation. Also appropriately notify the Veteran if unable to obtain these records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, make arrangements for the Veteran to be provided the following VA compensation examinations: (A) another audiological examination for the purpose of determining the etiology of his tinnitus. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary diagnostic testing and evaluation should be accomplished. The examiner must obtain a detailed history of the Veteran's noise exposure during his service and since. After reviewing the relevant evidence in the claims file, and the results of any testing deemed necessary, the examiner must provide an opinion in response to the following question: what is the likelihood (very likely, as likely as not, or unlikely) the Veteran's tinnitus incepted during his military service from May 1971 to May 1974 or is otherwise related or attributable to any incident of his service, including especially repeated exposure to excessively loud noise? The term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "Very likely" and "as likely as not" support the posited correlation between the current disability and the Veteran's military service, whereas concluding this is "unlikely" obviously instead weighs against the claim. If no link to military service is found, this finding and conclusion must be affirmatively stated. Regardless of whether the opinion is favorable or unfavorable to the claim, there has to be discussion of the underlying medical rationale, if necessary citing to specific evidence in the file supporting the opinion. The examiner merely saying he/she cannot respond, such as without resorting to speculation, will not suffice, unless there is explanation as to why a response is not possible. (B) an appropriate VA examination to determine the likelihood (very likely, as likely as not, or unlikely) the Veteran is unemployable if only considering his service-connected Hepatitis C (which, at the moment, is his only service-connected disability). The term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. "Very likely" and "as likely as not" support the claim, whereas "unlikely" obviously instead weighs against the claim. The claims folder must be made available to the examiner for review in conjunction with this additional examination. The examiner must review all of the relevant evidence of record, but must specifically recognize that the Veteran has a GED and had worked as a farmer until approximately 1989 when he stopped working after sustaining a back injury in that civilian job. The term unemployable means incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering the Veteran's level of education, prior work experience and training. It is most essential the VA examiner discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting conclusions. If, as an example, the examiner believes sedentary employment is still a viable possibility, even if a physically-demanding job perhaps is not, then he/she needs to consider this in the context of the Veteran's individual situation and circumstances. 3. The readjudicate the claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran a supplemental SOC (SSOC) and given him and his representative opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).