Citation Nr: 1331351 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-24 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total rating for compensation purposes based in individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1941 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to a TDIU. In November 2012, the Board remanded this case, in pertinent part, for the AMC/RO to develop and adjudicate the Veteran's claim for service connection for a heart condition to include as secondary to service-connected bilateral hearing loss. The matter of entitlement to a TDIU was noted to be inextricably intertwined with the Veteran's claim for service connection for a heart condition as the Veteran indicated that he had "heart problems which also can contribute to unemployment." However, in April 2013, the Veteran withdrew his claim for service connection for a heart condition 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). FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist obligations. 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 elements of a claim, so including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 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 notice requirements of 38 U.S.C.A. § 5103 underwent significant changes during the pendency of this appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) ultimately held that, for increased-rating claims, thus including a claim for a TDIU, the notice provided to the Veteran under this statute need not be "Veteran specific," and that VA is not required to notify him that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify him of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent in April 2010 which indicated the type of evidence and information needed to substantiate his claim for a TDIU and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. Regarding the duty to assist him with this claim, his pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. An attempt was made to obtain records from the Social Security Administration (SSA), but there were no records available at this other Federal agency. See September 2010 Formal Finding on the Unavailability of Social Security Medical Records. The Veteran was notified of the RO's unsuccessful efforts to obtain the SSA records in a September 2010 letter and what further steps VA would make concerning his claim. There is no indication in the record that any additional evidence, relevant to this claim being decided, is available and not part of the record. He has been examined by VA on multiple occasions. In fact, the Board remanded this case for another VA examination, which was conducted in May 2013. Hence, the Board is satisfied there was compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with remand directives and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with remand directives). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). 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). In this case, in pertinent part, the Veteran is service-connected for bilateral hearing loss, tinnitus, and multiple burn scars. The combined rating was 60 percent from December 2009, and 80 percent from May 2013. Prior to May 2013, the Veteran's bilateral hearing loss was rated as 50 percent disabling, his tinnitus was rated as 10 percent disabling, and his multiple burn scars were rated as 10 percent disabling. As of May 2013, the Veteran's bilateral hearing loss was rated as 80 percent disabling; thus increasing the overall combined rating. In April 2010, a claim for a TDIU was received from the Veteran. With regard to the schedular criteria, it has been met the entire appeal period. With regard to the period dated prior to May 2013, the bilateral hearing loss and tinnitus alone combined to 55 under 38 C.F.R. § 4.25 which is adjusted upward to 60 percent. The American Medical Association defines "acoustic trauma" as "[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire." American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran's bilateral hearing loss and tinnitus were service-connected on the basis of the Veteran's inservice exposure to acoustic trauma. See September 2004 rating decision. Thus, since both disabilities are derived from the same acoustic trauma injury, they are disabilities resulting from a common etiology. As such, the Veteran, during the appeal period, as had "one" disability rated as 60 percent disabling or more. However, the Veteran is still required to establish unemployability due to these disabilities. The Veteran indicated on his claim for a TDIU that his working history included working as a mail carrier (though the USPS noted in May 2010 that they had no record of the Veteran as an employee), and being self-employed working with RVs. He noted that he last worked in 1985 and did not leave the job due to his hearing loss and tinnitus disabilities. He also noted that he had four years of college. In a November 2007 statement, the Veteran and his representative asserted he had bilateral knee pain and disabilities. In addition, at that time, the Veteran was claiming service connection for diabetes mellitus with associated complications. Thereafter, the Veteran reported that he needed a knee replacement. In January 2008, the Veteran was again examined by VA. At that time, the Veteran reported that he last worked in 2005, but was unable to do any physical job due to his disabilities, which also affected his activities of daily living and made it difficult for him to work. The examiner did not provide any opinion regarding employability. Three current opinions are contained in the record which address employability. In October 2010, the Veteran was afforded a VA examination. The examiner indicated that the Veteran's hearing loss alone should not be a barrier to a wide range of employment settings as many individuals with the Veteran's degree of hearing loss, or worse, function well in many occupational settings. The examiner stated that this was not to say that the Veteran's hearing loss would not cause some problems depending on the vocation. The examiner noted that the Veteran may have trouble working well in very noisy environments and environments which required him to use non face-to-face communications equipment such as speakers, telephones, intercoms, etc. In an April 2011 letter, the Veteran's private audiologist indicated that the Veteran had complete loss of hearing in his right ear, had hearing loss in his left ear, as well as bilateral tinnitus. She opined that the Veteran's hearing loss would have a significant negative impact on his communication ability in the majority of listening situations. She advised that the Veteran should avoid working in any place where there is noise which would exacerbate his hearing loss. His hearing loss would pose a significant safety risk in any setting involving transportation/driving or being around heavy or moving machinery. His service-connected hearing loss would significantly impair his employability in most job assignments with or without adaptation. The Veteran was examined by VA again in May 2013 by an audiologist. The examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life including work because he had severe problems understanding speech in most any situation. The examiner also stated that the tinnitus did not result in adverse affects. The Veteran was also afforded a general medical evaluation which revealed that he had coronary artery disease, status post stents, as well as chronic obstructive pulmonary disease (COPD). The examiner stated that these conditions prevented the Veteran from doing moderate or greater levels of physical employment. In addition, the Veteran had arthritis which prevented him from doing employment activity requiring repetitive lifting or carrying or any significant amount of walking. However, his service-connected scars were noted to not impact his ability to work. This examiner also provided an opinion regarding overall employability. The examiner stated that in his opinion, the Veteran's service-connected conditions less likely than not rendered him unable to secure or follow a gainful occupation. The examiner noted that the hearing impairment affected jobs that required normal hearing, but further indicated that there were many occupations that did not require normal verbal communication with others. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, all three opinions are probative to the extent that they addressed the Veteran's employability after examining the Veteran and reviewing his history. The first opinion concluded that bilateral hearing loss did not preclude all employment. The second opinion indicated that the Veteran's hearing loss significantly impacted employment negatively, but she did not state that the Veteran could not work. Rather, the opinion advised the types of work which should be avoided and that there was indeed significant industrial impairment. However, like the first opinion, she did not address nonservice-connected disabilities. The last opinion, as supported by statements by the May 2013 audiologist, concluded that the Veteran was not unemployable due to his service-connected disabilities. Although his hearing loss, but not tinnitus or burn scars, negatively impacted the type of work that he could perform, he was not unable to work according to this examiner. The Board further notes that the Veteran has nonservice-connected disabilities which impair his employment options, but the Board cannot consider their effects. The essential issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect that circumstances, apart from non-service-connected conditions, place him in a different position than other veterans having the same compensation rating. 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 or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, was capable of performing the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the Veteran's service-connected disabilities alone do not preclude him from engaging in substantially gainful employment. A combined 60 and a combined 80 percent rating contemplate an impairment in the ability to perform substantially gainful employment due to the Veteran's service-connected disabilities. However, "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. The Board believes that the VA Schedule for Rating Disabilities and the disability evaluations assigned to the Veteran's service-connected disabilities under that Schedule accurately reflect the Veteran's overall impairment to his earning capacity. While the medical opinions in this case acknowledged industrial impairment due to hearing loss, none of the three opinions in this case indicated that the Veteran's service-connected disabilities preclude all employment. In other words, it was acknowledged that the Veteran is essentially deaf, particularly in his right ear, but his deafness does not prohibit all kinds of employment. The Veteran is noted to have four years of college and a work history involving being a mail carrier and self-employed working with RVs. His work history and educational background along with the medical opinions as a whole do not support that the Veteran is unemployable due to his service-connected disabilities. The Veteran is competent and capable of stating that he has encountered difficulties in the work environment due to his hearing loss, but the Board finds that the medical opinions are more probative regarding his overall employability because the examiners performed a longitudinal review of the Veteran's medical status and his employment capabilities. Likewise, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Cohen v. Brown, 10 Vet. App. 128, 137 (1997). Therefore, a TDIU rating is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs