Citation Nr: 1330884 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-02 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating for tinnitus in excess of 10 percent, on an extraschedular basis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted the Veteran's claim for service connection for tinnitus and assigned a 10 percent rating effective as of November 5, 2008-the date of the Veteran's claim. The Veteran was scheduled to present testimony at a Travel Board hearing before a Veterans Law Judge in October 2011. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. In December 2011, the Board remanded this case for further development. The case has returned to the Board for appellate review. FINDINGS OF FACT 1. The established schedular criteria for the Veteran's tinnitus is not inadequate to describe the severity and symptoms thereof, and, in light of the grant of a separate 50 percent rating for adjustment disorder with mixed anxiety and depressed mood, an award of an extraschedular disability rating for tinnitus is not warranted. 2. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for tinnitus on an extraschedular basis have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321 (2012). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). With respect to the issue of entitlement to an initial disability rating for tinnitus in excess of 10 percent on an extraschedular basis, this claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to the issue of entitlement to a TDIU, the duty to notify was satisfied prior to the initial Agency of Original Jurisdiction (AOJ) decision by way of a letter sent to the Veteran in March 2012 that informed him of his duty and the VA's duty for obtaining evidence. In addition, the letter met the notification requirements set out in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was most recently readjudicated in June 2013. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues, including VA treatment records, VA examination reports, and a letter from the Director of the Compensation Service, has been obtained. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the December 2012 VA examination reports are adequate because the examiners discussed the Veteran's medical history, described the service-connected disabilities and their effect on employability in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results. This claim was remanded by the Board for additional development in December 2011. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has provided the Veteran with the required notice, requested additional treatment records and lay statements, and obtained an evaluation from the Director of the Compensation Service. Additionally, VA provided the Veteran with new examinations in December 2012. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Analysis: Extraschedular Rating for Tinnitus In a June 2009 notice of disagreement, the Veteran contends that his tinnitus warrants a higher rating, including on an extraschedular basis, because it "has d[e]gressed...to the point of interference with employment and psychological well being." In response, the Board remanded the Veteran's claim in December 2011 in order to provide him with "a VA psychiatric examination to determine the nature, onset and etiology of any psychiatric disability found to be present." The Veteran received that examination in December 2012, and, based on the results thereof, the RO granted him service connection for adjustment disorder with mixed anxiety and depressed mood, and assigned a separate rating of 50 percent in a January 2013 rating decision. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's tinnitus does not warrant an extraschedular rating. While the Veteran has described separate psychiatric consequences of his tinnitus, the tinnitus itself is wholly contemplated by the established schedular criteria. Furthermore, in an April 2013 report, the Director of the Compensation Service found that "No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical." Finally, in light of the RO's assignment of a separate rating of 50 percent for adjustment disorder with mixed anxiety and depressed mood associated with tinnitus, an award of an extraschedular disability rating for tinnitus is not warranted because it would have the effect of doubly compensating the Veteran for his psychiatric symptoms. 38 C.F.R. §§ 3.321, 4.14 (2012). Consequently, the benefit of the doubt rule is not for application, and the claim for entitlement to an initial disability rating for tinnitus in excess of 10 percent on an extraschedular basis is denied. Analysis: TDIU Because the Veteran raised the question of whether he was unemployable due to his service-connected disabilities, the issue of whether a TDIU was warranted was raised by the Board in December 2011. Rice v. Shinseki, 22 Vet. App. 447 (2009). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). However, VA may not take into account the individual Veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). 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, 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 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. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment-defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)-shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Here, the Veteran is in receipt of a 50 percent rating for adjustment disorder with mixed anxiety and depressed mood, a 20 percent rating for bilateral hearing loss, and a 10 percent rating for tinnitus. Thus, his combined rating is 60 percent disabling. 38 C.F.R. § 4.25 (2012). Because his hearing loss, tinnitus, and adjustment disorder with mixed anxiety and depressed mood all stem from a common etiology of acoustic trauma, he qualifies for consideration under 38 C.F.R. § 4.16(a). The Board finds that the Veteran is not unemployable by reason of service-connected disabilities based on the December 2012 VA opinions of an audiologist and a psychologist. In March 2012, the Veteran reported in his VA Form 21-8940 that he last worked full-time in August 1989, that his disability affected his full-time employment as of September 1990, and that he worked as a dockworker in 1978, and as a part-time health assistant from May 2008 to August 2008. At his December 2012 VA mental disorders examination, the Veteran reported that he did hard labor in his father's construction business during his high school summers, and worked after service in shipping and receiving for freight companies, as a delivery driver, and in sales of water softener and purifiers. The Veteran told the December 2012 VA psychologist examiner that exposure to even low levels of noise at work might eventually trigger an exacerbation of his tinnitus. The Veteran further reported that he attended college after discharge from service, but his difficulty hearing, sleeping, and concentrating due to tinnitus caused him to withdraw during his first semester. In a December 2012 VA examination report, the audiologist opined: The Veteran's hearing loss and tinnitus alone would not render him unable to secure or follow a substantially gainful occupation. Many individuals with the Veteran's degree of hearing loss and tinnitus, or worse, function well in many occupational settings. This is not to say that the Veteran's hearing loss and tinnitus would not cause some problems depending on the vocation. The Veteran may experience difficulty hearing certain sounds and understanding speech, especially in the presence of background noise, without visual cues. However, [the] Veteran wears appropriately fit VA-issued hearing aids, which will help his reported hearing difficulties. Due to the Veteran's psychiatric symptoms, VA obtained an additional opinion in December 2012 on whether his psychiatric and other service-connected disabilities, in combination, would qualify him for a TDIU. The VA psychologist opined: The aggregate effect of all his physical and mental conditions would not, in this examiner's opinion, result in VETERAN being unemployable. He has experienced decreased work efficiency due to his Adjustment Disorder. However, he would be expected to work in a setting allowing independence such as a telecommuting job (for instance medical transcriptionist) or involving being outdoors in nature, such as a forestry official. Also, this examiner opines that employment would be expected to result in this VETERAN experiencing a more positive sense of self and increased self-efficacy. When determining whether a veteran's service-connected disabilities preclude him or her from securing or following substantially gainful employment, the Board is required to consider and discuss the veteran's educational and occupational history and explicitly relate these factors to the disabilities of the individual veteran. Cathell v. Brown, 8 Vet. App. 539, 544 (1996). Here, because the VA audiologist found that "many individuals with the Veteran's degree of hearing loss and tinnitus, or worse, function well in many occupational settings," and because the Veteran has experience in a job with a "setting allowing independence," namely as a delivery driver, the Board finds that the preponderance of the evidence is against a finding that he is not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Board finds the Veteran's assertion that exposure to even low levels of noise at work might eventually trigger an exacerbation of his tinnitus is not credible in light of the December 2012 VA audiologist examiner's findings. The Board finds that the opinions of the December 2012 VA examiners warrant greater probative weight than the Veteran's own assertions that his service-connected disabilities render him unemployable, based on their medical expertise and understanding of the severity of the Veteran's disabilities. Consequently, the benefit of the doubt rule is not for application, and the claim for entitlement to a TDIU due to service-connected disabilities is denied. ORDER An extraschedular rating for tinnitus is denied. A TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs