Citation Nr: 1329171	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-01 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming


THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for duodenal ulcer disease with hiatal hernia.

2.  Entitlement to increases in the ratings for bilateral hearing loss, currently assigned "staged" ratings of 0 percent prior to June 28, 2013, and 20 percent from that date.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

D. Schechner, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from February 1958 to January 1961.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Cheyenne, Wyoming RO.  In March 2006 and May 2013, the Board remanded these matters for additional development.  An interim [July 2013] rating decision granted a 20 percent rating for bilateral hearing loss, effective June 28, 2013.  That issue is characterized to reflect that "staged" ratings are assigned, and that both stages remain on appeal.


FINDINGS OF FACT

1.  At no time during the evaluation period is the Veteran's duodenal ulcer disease with hiatal hernia shown to have been manifested by more than moderate ulcer disease; impairment of health manifested by anemia and weight loss or recurring incapacitating episodes averaging 10 days or more are not shown; hiatal hernia symptoms pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health are not shown.   

2.  Prior to June 28, 2013, there was no competent evidence (audiometry) showing that the Veteran's hearing acuity was worse than level II in either ear; from that date, hearing acuity worse than Level III in the right ear or Level VII in the left ear is not shown.   

3.  The Veteran's service-connected disabilities (duodenal ulcer disease with hiatal hernia rated 30 percent; second degree chemical burns of both upper extremities, rated 20 percent, each; bilateral hearing loss rated 20 percent, second degree chemical burns of both lower extremities, rated 10 percent, each; second degree chemical burns of the abdomen and buttocks rated 10 percent; tinnitus rated 10 percent; and right fourth finger laceration scar rated 0 percent) are not shown to render him unable to secure and follow a substantially gainful occupation. 

CONCLUSIONS OF LAW

1.  A rating in excess of 30 percent for duodenal ulcer disease with hiatal hernia is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.20, 4.21, 4.114, Diagnostic Codes (Codes) 7305, 7346 (2012).

2.  A compensable rating for the bilateral hearing loss prior to June 28, 2013, and a rating in excess of 20 percent from that date, are not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.85, Code 6100 (2012).

3.  The schedular requirements for a TDIU rating are met, but a TDIU rating is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  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(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claim.  A July 2003 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  A March 2006 letter also informed the Veteran of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. 

The Veteran's pertinent post-service treatment records have been secured.  The RO arranged for VA examinations in March 2004, December 2009, January 2010, and June 2013, which will be discussed in greater detail below, though the Board finds these examinations (cumulatively) to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.

Duodenal ulcer disease with hiatal hernia

The Veteran's gastrointestinal disability may be rated under Code 7305 (for duodenal ulcer) or Code 7346 (for hiatal hernia).  A governing regulation provides that ratings under these two codes may not be combined, but that a single rating is to be assigned under the code that reflects the predominant disability picture , with elevation to the next higher rating where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114.  

Under Code 7305, a 40 percent rating is warranted for moderately severe duodenal ulcer disease, less than severe but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year.  A 20 percent rating is warranted for moderate duodenal ulcer disease, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations.  38 C.F.R. § 4.114.

Under Code 7346, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or symptom combinations productive of severe impairment of health.  A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  With two or more of the symptoms for the 30 percent evaluation of lesser severity, a 10 percent rating is warranted.  38 C.F.R. § 4.114.

For the purposes of evaluating conditions under 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  "Baseline weight" means the average weight for the two year period preceding onset of the disease.

The Veteran's claim for an increased rating was received in June 2003; the relevant period for appeal is therefore from June 2002.

On October 2002 VA treatment, the Veteran complained of regurgitation from his stomach with burning in the chest and stomach pain.  He was not getting any results from rabeprazole, although Prevacid was more effective.  The assessments included peptic ulcer disease (PUD)/gastrointestinal reflux disorder (GERD) not improving.

On March 2004 VA examination, the Veteran reported that he sought treatment once a year for primary care.  He reported that he had regurgitation about four to five times per week, on average, usually while sleeping and reclining.  He reported that he would awaken choking, with stomach material in his mouth, and he would get up and try to relax, usually sitting up in a chair for one to one and a half hours; on some occasions, he would lie back down and there would be a recurrence of the regurgitation after one to two hours.  He reported that he took Prevacid daily, elevated the head of his bed, avoided eating or drinking for four to five hours before lying down, and slept an average of four to five hours per night.  He avoided bending over because it caused regurgitation, and avoided cranberries, spicy foods, carbonated drinks, and grapefruit.  He noticed an epigastric pain, belching, and heartburn with his regurgitation, four to five times per week on average, and lasting one to two hours.  At times, he felt a sticking sensation when swallowing food, and he identified the sterna notch as the location of the sticking; this would occur when he becomes nervous or upset, on average about every other day.  About once a month, when there was regurgitation, he would notice a slight string of blood in the mucus or food.  He reported no hemorrhage or bleeding otherwise.

On physical examination, the Veteran appeared in no distress.  Examination of the abdomen showed some mild tenderness in the epigastric area.  There were no masses and no organomegaly.  His abdomen was otherwise normal except for obesity.  The diagnoses included hiatal hernia with gastroesophageal reflux and a history of duodenal ulcer.

In March 2006, the Board found the March 2004 VA examination to be inadequate and remanded the matter to afford the Veteran a new examination.

On June 2009 VA treatment, the Veteran reported that his reflux symptoms were getting worse.  He reported he gained 40 pounds over the previous 2 years.  On July 2009 VA treatment, the Veteran reported that he had gradually gotten the regurgitation and heartburn symptoms under control, yet he had gained a good deal of weight in the previous year or two and had noted his regurgitation was dramatically increased.  He did not appear to have any neurologic problems or transfer problems with swallowing, and had little in the way of heartburn, with more of a sensation of fluid coming up with coughing or spluttering.  He denied any chronic hoarseness or sore throat, and did not have odynophagia.  He had some wheezing and coughing intermittently, although he was still a smoker.

On August 2009 VA treatment, it was noted that an esophogram showed nothing sinister although the Veteran had a lower ring.  It was noted that he had had intermittent dysphagia for solids for some years.  He denied any recent fever, chills, cough, chest pain, or abdominal pain.  He was noted to be generally unfit with a big stomach, and walked with a limp due to his hip.  

On January 2010 VA examination, the Veteran reported there was no evidence of ulcer on his last endoscopic evaluation, although he continued to have a hiatal hernia.  He reported regurgitation/heartburn with radiating pain to the left shoulder and left arm at least three or four times per week that lasted until treated.  He reported "choking spells" three to four times in the previous week when eating or drinking.  He treated his symptoms with Prevacid which provided some relief.  He reported that his symptoms were exacerbated by anything he ate and alleviated with relaxation and sipping water.  He did not do much due to the effects of the hydrocodone he took for arthritis.  On physical examination, the Veteran was described as obese, and in no acute distress.  No dysphasia was noted.  The diagnoses included hiatal hernia/GERD.

On June 2013 VA examination, the Veteran's diagnoses included GERD and hiatal hernia.  He reported recurrent symptoms of heartburn and regurgitation.  He reported that the symptoms were well controlled with oral medications but they worsened when he gained a large amount of weight in 2009; a July 2009 esophogram showed a small hiatal hernia without gastroesophageal reflux and without evidence of esophagitis.  The Veteran reported that at that time he stopped taking his prescribed medication Prilosec.  On examination, the Veteran reported symptoms of heartburn at least once per day, most commonly occurring at night.  He kept the head of his bed elevated to minimize the symptoms but they still occurred.  He reported that he was advised to have a small snack at bedtime to avoid low blood sugars at night due to his diabetes, although the snacks increased his risk for nighttime regurgitation.  He reported problems with dysphagia with any types of food and even with water.  Overall, the Veteran reported that his GERD symptoms were "about the same" and included dysphagia, pyrosis (heartburn), regurgitation, and substernal arm or shoulder pain.  He reported that he had occasional abdominal pain associated with diarrhea, usually after taking an oral medication for diabetes (for which abdominal pain and diarrhea are common side effects).  He had no signs of a recurrence of peptic ulcer disease.  He had no incapacitating episodes due to signs or symptoms of any stomach or duodenum condition.  His symptoms did not include episodes of epigastric distress, reflux, anemia, weight loss, nausea, vomiting, hematemesis, or melena; he had no esophageal stricture, spasm of the esophagus, or acquired diverticulum of the esophagus.  

As is noted above, ratings under Code 7305 and 7346 may not be combined, and the duodenal ulcer disease and hiatal hernia must be rated under the diagnostic code that best reflects the total disability picture.  Here, that code is Code 7346, for hiatal hernia, as the Veteran is not shown to have had recurrence of ulcer(s).  (Without recurrence of ulcers he could not have had incapacitating episodes of such disease with anemia or weight loss, and such are not shown.)  As the record does not show that at any time during the evaluation period there were symptoms of pain, weight loss, and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health, and the overall digestive system disability picture presented is not one consistent with severe impairment of health, the next higher (60 percent) schedular rating under Code 7346 is not warranted, including on the basis of elevation to account for the severity of the overall digestive disability picture.  In this regard it is noteworthy that there has been no recurrence of duodenal ulcer during the evaluation period; that the Veteran is not shown to have been anemic or to have suffered weight loss (but in fact gained weight); and that a VA examiner has specifically opined that the Veteran's service-connected digestive problems would not impact on his ability to work.  

The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating.  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms".  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating.

Comparing the manifestations of the Veteran's duodenal ulcer disease with hiatal hernia and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the rating assigned, and consequently those criteria are not inadequate.  The Veteran has not alleged any symptoms or impairment that exist but are not encompassed by schedular criteria.  Therefore, referral for consideration of an extraschedular rating is not necessary.   The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.

Bilateral hearing loss

Ratings for hearing loss disability are determined by considering the puretone threshold average and speech discrimination percentage scores.  38 C.F.R. § 4.85(b), Table VI.  Disability ratings are assigned by combining a level of hearing loss in each ear.  38 C.F.R. § 4.85(e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

When there is an exceptional pattern of hearing impairment, the disability may be rated under either Table VI or Table VIA, whichever is more favorable.  38 C.F.R. § 4.86(a)(b).  Each ear will be evaluated separately.  Table VIA may also be used when an examiner certifies that use of speech discrimination scores is inappropriate due to language difficulty, etc.  38 C.F.R. § 4.85.

The Veteran's claim for an increased rating for bilateral hearing loss was received in June 2003.  The relevant period for consideration for a claim for increase is from one year prior; thus, here it is from June 2002.  There is no pertinent medical evidence for the period from June 2002 to January 2004.

On January 2004 VA treatment, the Veteran stated that he believed his hearing had changed, especially in the right ear.  On audiometric evaluation, the puretone thresholds for the right ear were from 15 to 25 decibels to 2000 Hertz, sloping to 75 to 90 decibels for 3000 to 8000 Hertz.  The puretone thresholds for the left ear were from 10 to 25 decibels up to 2000 Hertz, sloping to 65 to 85 decibels for 3000 to 8000 Hertz.  Word recognition scores were 92 percent for the right ear and 88 percent for the left ear.  The audiologist noted that the results suggested no significant change in hearing status since August 1998.  The audiologist noted that the speech audiometry results suggested the Veteran probably had little difficulty understanding normal conversation speech in quiet listening situations, and background noise and speech at a distance would definitely interfere with his understanding ability.

On March 2004 VA examination, the Veteran denied any ear pain, discharge, or surgery.  He had been using VA-issued hearing aids since 1998.  Puretone thresholds, in decibels, were:

HERTZ
1000
2000
3000
4000
Right 
35
25
80
95
Left
35
35
80
85

Average puretone thresholds were 59 decibels for each ear.  Speech audiometry revealed speech recognition ability of 96 percent in each ear.  

In March 2006, the Board remanded this matter to afford the Veteran a new VA examination.

On December 2009 VA audiological examination, audiometric testing revealed that puretone thresholds, in decibels, were:
HERTZ
1000
2000
3000
4000
Right 
35
25
90
100
Left
25
35
75
90

Average puretone thresholds were 62.5 decibels for the right ear, and 56.25 for the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in each ear.  The examiner found the Veteran's hearing in the right ear to be within normal limits at 2000 Hertz, with a mild sensorineural hearing loss at 250 to 1000 Hertz, and a profound sensorineural hearing loss from 3000 to 8000 Hertz.  The examiner found the Veteran's hearing in the left ear to be within normal limits at 1000 Hertz, with a mild sensorineural hearing loss at 2000 Hertz, and a severe to profound sensorineural hearing loss from 3000 to 8000 Hertz.  Regarding the impact of the Veteran's hearing loss on his daily life, the examiner noted that it caused difficulty hearing in noise, television, and in groups.  Regarding the impact of the Veteran's tinnitus on his daily life, the examiner noted that it interfered with his sleep.  

On June 28, 2013 VA audiological examination (pursuant to the Board's May 2013 remand), puretone thresholds, in decibels, were:

HERTZ
1000
2000
3000
4000
Right 
40
35
90
100
Left
35
50
85
100

The average puretone thresholds were 66 decibels in the right ear and 68 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 64 percent in the left ear.  The assessment was sensorineural hearing loss in the frequency range of 500 to 4000 Hertz bilaterally.  The Veteran reported the impact of his hearing loss on his daily life as including difficulty hearing in noise, groups, restaurants and when riding in a car.  Regarding the impact on his occupation, the examiner noted that the Veteran is retired.

Based on these findings, a July 2013 rating decision granted a 20 percent rating for bilateral hearing loss effective June 28, 2013 (the date of the examination when audiometry first showed that the criteria for a higher rating were met).  

The Board finds the June 2013 examination to be adequate for rating purposes, as it was conducted in accordance with regulatory guidelines, included the findings necessary for rating the hearing loss disability, and included notation of the Veteran's reports of the impact of the disability on his activities and employment.

There is no evidence prior to June 28, 2013 showing an increase in hearing loss disability (such that would warrant a compensable rating).  Consequently, a compensable rating may not be assigned prior to that date.  38 C.F.R. § 3.400.  

Applying the results of the March 2004 VA examination to Table VI produces a finding that the Veteran had Level II hearing in the right ear and Level II hearing in the left ear, which under Table VII warrants a 0 percent rating.  The findings do not show an exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable; consequently Table VIA is not for application.   

Applying the results of the December 2009 VA examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear and Level I hearing in the left ear, which under Table VII warrants a 0 percent rating.  Once again, an exceptional pattern of hearing loss was not shown, nor did the examiner indicate that speech recognition scores were unreliable.  Consequently, Table VIA may not be applied.  

Applying the results of the June 2013 VA examination to Table VI produces a finding that the Veteran had Level III hearing acuity in the right ear and Level VII hearing in the left ear, which under Table VII warrants a 20 percent rating.  There was no exceptional pattern of hearing loss, nor did the examiner indicate that speech recognition scores were unreliable.  Consequently, Table VIA is not for application.  Notably, the examiner elicited from the Veteran a description of the functional impairment that arises from his hearing loss, including difficulty hearing in noise, groups, restaurants and when riding in a car.  The Board finds no reason to question that the functional impairment is as the Veteran describes.  Such impairment is contemplated by the rating assigned.

There is no other medical record that provides a basis for rating the Veteran's hearing loss disability.  There is therefore no medical evidence to support a rating in excess of 20 percent at any time.

The Board has considered whether referral of this matter to the Compensation and Pension Service for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b) is indicated.  However, the schedular criteria contemplate the findings and associated functional impairment shown; there is no manifestation that is not encompassed by the schedular criteria.  Increased impairment of hearing acuity is accounted for by the Schedular rating assigned.  See 38 C.F.R. § 4.1.  Accordingly, those criteria are not inadequate, and referral for extraschedular consideration is not necessary.  See Thun v. Peake, 22 Vet. App.111 (2008).  

The Board finds that the preponderance of the evidence is against the Veteran's claims for a compensable rating prior to June 28, 2013, and/or for a rating in excess of 20 percent since that date, for his bilateral hearing loss.  Therefore, the appeal in the matter must be denied.

TDIU

TDIU may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a).  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.  38 C.F.R. § 4.16(a).  

The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability".  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function.

The United States Court of Appeals for Veterans Claims (Court) has stated:

In determining whether [an] appellant is entitled to a total disability rating based upon individual unemployability, the appellant's advancing age may not be considered.  See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).  The Board's task [is] to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability.  In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 percent combined disability rating.  See 38 C.F.R. § 4.16(a) (1992).

Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, 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 non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

"Substantially gainful employment" is that employment "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."  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment."

In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment".  The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit 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.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.

The initial question for consideration is whether or not the schedular criteria for a TDIU rating in 38 C.F.R. § 4.16(a) are met.  The Veteran's service connected residuals of chemical burns of the upper and lower extremities and abdomen and buttocks share a common etiology, and for purposes of this determination are considered a single disability.  As their combined rating (with application of the bilateral factor) is 60 percent, and as the combined rating for all service-connected disabilities is 80 percent (see 38 C.F.R. §4.25)), the schedular criteria for a TDIU rating are met.    

Therefore, the analysis progresses to whether the Veteran's service connected disabilities indeed render him unemployable.  

The fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  Van Hoose, supra.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  

The Veteran has not worked in a number of years.  However, this fact, in and of itself, does not provide a basis to conclude that his service-connected disabilities render him unemployable.  Notably, he has cited to several factors that may not be considered in determining his entitlement to a TDIU rating, including his age and several nonservice connected disabilities.  Most notably, he has stated on more than one occasion that he stopped working in 1976 due to a [non-service connected] back injury; on March 2004 VA examination, he reported that he had been disabled since 1977 due to a fractured back.

In his June 2003 claim, the Veteran noted that his service-connected ulcer and hiatal hernia prevent him from securing or following any substantially gainful occupation.  He reported that he has an 8th grade education; that he last worked full time in 1976, as a laborer and security guard; and that he became too disabled to work in September 1977.  He reported that he left his last job because of his disability and had not tried to obtain employment since he became too disabled to work.

In a March 2004 statement, the Veteran stated that he was disabled and unable to work due to degenerative arthritis, carpal tunnel syndrome, and a history of a hiatal hernia, which (cumulatively) prevented him from lifting in excess of ten pounds, walking and standing for prolonged periods of time, or using his right hand for repetitive movements.  He stated that his age and limited education were also factors in his unemployability, as he did not have transferable skills to perform other work within his physical and mental residual functional capacity.

On March 2004 VA examination, the Veteran reported that he had been disabled since 1977 due to a fractured back; he had worked as a security guard before he retired.  Regarding his service-connected disabilities, the examiner opined that the Veteran remained capable of employment; he carried on a conversation normally, and his bilateral hearing loss, second-degree chemical burns, reflux, and right fourth finger lacerations did not preclude him from working.

On December 2009 VA audiological examination, the examiner opined that, due to bilateral hearing loss and tinnitus, the Veteran may have difficulty in a work environment in which auditory communication is critical, especially if there is background noise.  The examiner noted that the Veteran should do better wearing hearing aids, yet the Veteran stated that he was unable to wear hearing aids because he was allergic to the material.  The examiner suggested that the Veteran should do better if he could take advantage of visual cues.

On January 2010 VA medical examination, the examiner noted that the Veteran had been awarded Social Security disability benefits (before he became eligible due to age and retirement) due to a broken back incurred in a motor vehicle accident which also damaged his knees, and also due to ulcer and hiatal hernia.  When asked the current barriers to his employment, the Veteran cited arthritis and aging; he stated he did not feel capable of any kind of employment and he had no employment skills.  The examiner opined that, considering the impact on function of his service-connected disabilities only, the Veteran was capable of sedentary employment.  Noting the Veteran's own statement that his main barriers to employment were his back and hiatal hernia, the examiner opined that the hiatal hernia presented minimal limitation to the Veteran's employment.  The examiner opined that the Veteran's skin lesions presented a larger barrier to employment due to their appearance and his need to avoid allergens; therefore, the examiner opined that the Veteran was capable of only sedentary employment with minimal allergen exposure (e.g. rubber and chemicals).

On June 2013 VA examination, the examiner opined that the Veteran's esophageal, stomach, and/or duodenum conditions do not impact his ability to work.

While the Veteran clearly has problems due to his many service-connected disabilities, each is evaluated accordingly.  The record does not reflect that the service-connected disabilities, cumulatively, preclude his participation in gainful employment.  As was noted above, nonservice-connected physical disabilities may not be considered in deciding whether or not the Veteran is entitled to a TDIU rating.  Notably, several VA examiners have specifically found that the Veteran is employable (despite his service-connected disabilities).  

The Board has considered the Court's guidance in Bowling v. Principi, 15 Vet. App. 1 (2001).  However, the facts in this case are distinguishable from Bowling.  In Bowling, according to the Court, there was a plausible basis in the record for a conclusion that the veteran was unable to secure and follow a substantially gainful occupation due to a service connected disability.  Here, unlike Bowling, the Veteran has not submitted supporting evidence of unemployability based on his service connected disabilities alone (without regard to other nonservice-connected disabilities, age, and/or the employment market).


ORDER

A rating in excess of 30 percent for duodenal ulcer disease with hiatal hernia is denied.

A compensable rating for bilateral hearing loss prior to June 28, 2013 and a rating in excess of 20 percent for bilateral hearing loss from June 28, 2013 are denied.

The appeal seeking a TDIU rating is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs