Citation Nr: 1331796 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-02 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his spouse, Mrs. B.B. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on two individual periods of active duty in the United States Navy, the first period from October 1948 to October 1949 and the second period from March 1952 to November 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Denver, Colorado, Regional Office of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to a TDIU. The Cheyenne, Wyoming, VA Regional Office (RO) is the agency of original jurisdiction over the current appeal. In May 2013, the Veteran, accompanied by his witnesses and his representative, appeared at the RO to present evidence and oral testimony in support of his appeal before the undersigned traveling Veterans Law Judge sitting at the RO. A transcript of this hearing has been associated with the Veteran's claims file for review and consideration. In June 2013, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development, including providing the Veteran with medical examinations of his service-connected bilateral hearing loss, tinnitus, and knee disabilities, in order to obtain an objective clinical opinion of their impact on his employability. These examinations were conducted in August 2013, from which the requested opinions were obtained. Thereafter, the TDIU claim was readjudicated and denied in an August 2013 rating decision/supplemental statement of the case. The case was returned to the Board in September 2013 and the Veteran now continues his appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The Veteran is presently service-connected for bilateral sensorineural hearing loss (rated 30 percent disabling), tinnitus (rated 10 percent disabling), residuals of a medial meniscectomy with osteoarthritis, right knee (rated 20 percent disabling), and residuals of a medial meniscectomy with osteoarthritis and history of wrenching injury, left knee (rated 20 percent disabling), which produce a combined disability rating of 60 percent. 2. The Veteran is not precluded from securing and following a substantially gainful occupation in a sedentary capacity by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's TDIU claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2013). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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. This appeal stems from the Veteran's TDIU claim, which was received by VA on June 7, 2010. The Veteran was provided with timely notice of the VCAA as it pertained to his TDIU claim in late June 2010, in which he was further informed of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As this notice was furnished prior to the August 2010 rating decision that adjudicated the TDIU claim in the first instance, no timing of notice error exists. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio at 187. The Board also concludes VA's duty to assist has been satisfied. The Board has reviewed the Veteran's claims file and observes that VA medical records and examination reports pertaining to the Veteran's service-connected disabilities and his TDIU claim for the period from 2009 - 2013 have been obtained and associated with his claims folder and viewable on the VBMS and Virtual VA electronic databases. These include reports of VA examinations conducted in August 2010 and August 2013, the latter of which expressly discusses the impact of the Veteran's service-connected disabilities on his employment capacity. The aforementioned VA examination reports, especially those of August 2013, are predicated upon a clinical examination of the Veteran, consideration of the Veteran's lay history, and are presented in the context of his relevant clinical history. Rationale is provided with the opinions. The Board thus finds them adequate for purposes of adjudicating the TDIU claim on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board observes that the August 2013 orthopedic examination, but not the August 2013 audiological examination, was conducted in conjunction with a review of the Veteran's claims file by the examining clinician. Such is not necessarily fatal to determining the adequacy of the examination. Indeed, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. In this regard, after personally interviewing and examining the Veteran, the VA audiological examiner provided an opinion that contains adequate discussion of the occupational impact of the Veteran's service-connected bilateral hearing loss and tinnitus in the context of its disabling symptomatology. The aggregate of the clinical evidence is sufficient to present a picture of the impact of the Veteran's service-connected disabilities upon his occupational capacity. The Veteran is over 80 years old and had reported that he has been retired since approximately 1983. He also reports that his decision to stop working was influenced by the problems he experienced with his knees. A 2007 income tax information statement from the Social Security Administration (SSA) indicates that he is in receipt of SSA benefits. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument in Golz that SSA records are always relevant and VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. There is no indication in the record that the Veteran's SSA records are relevant or would aid in substantiating his TDIU claim. There is no evidence that the Veteran is in receipt of SSA disability benefits. The Veteran does not contend otherwise. Rather, he testified that he retired after many years of work, and that he did not apply for SSA benefits until many years later. It is also questionable how any SSA records from 2007, if any exist, would be probative to Veteran's claim, which was not filed until several years later. Put another way, no useful purpose would be gained in further delaying a decision in this case by requesting SSA records in this instance. In view of the foregoing discussion, the Board finds that the current evidence of record is therefore sufficient to allow the Board to determine the occupational impact of the Veteran's service-connected disabilities on his industrial capacity in the context of his age, and vocational and educational history. The Veteran and his representative have been provided ample opportunity to add to the record prior to the return of this case to the Board and they have not identified any relevant outstanding evidence whose inclusion in the record is deemed necessary to fairly adjudicate the current TDIU claim. The Board also notes at this juncture that the evidentiary and procedural development undertaken by the RO since the Board's remand of June 2013 is in substantial compliance with the instructions contained therein regarding providing the Veteran with medical examinations of his service-connected disabilities in order to obtain objective clinical opinions of their impact on his employability. The requested examinations and opinions were obtained in August 2013 and are associated with the claims file. After the examinations were conducted the June 2013 Board remand instructed the RO/AMC to refer this matter to the Director of the Compensation & Pension Service for consideration of an extraschedular grant of a TDIU under § 4.16(b). This was not done. However, a remand for additional corrective action is not deemed necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. The Court has held in Dyment v. West, 13 Vet. App. 141, 146-47 (1999), that exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions. Here, as discussed in greater detail below, the evidence of record, especially in consideration of the findings of the August 2013 examinations, gives no basis for a referral. Referring the matter to the Director for extraschedular consideration would be a pointless endeavor and a waste of resources and time. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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. See 38 C.F.R. § 4.16(a) (2013). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2013). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 (2013). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As previously stated, the Board itself cannot assign an extraschedular rating in the first instance. However, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). During the entirety of the period relating to the pendency of the claim (i.e., from June 7, 2009 to the present), the Veteran has been service-connected only for bilateral hearing loss (rated 20 percent disabling prior to June 7, 2010, and 30 percent disabling thereafter), residuals of medial meniscectomy of the right knee with osteoarthritis (rated as 20 percent disabling), residuals of medial meniscectomy of the left knee with history of wrenching injury and osteoarthritis (rated as 20 percent disabling), and tinnitus (rated as 10 percent disabling). At this juncture, the Board notes that the propriety of the aforementioned ratings assigned to these service-connected disabilities was adjudicated in the August 2010 rating decision, but that the Veteran expressly elected to appeal only that part of the August 2010 rating decision that denied his TDIU claim. The ratings assigned to each service-connected disability are therefore not subject to appellate review in the present appeal. Per 38 C.F.R. § 4.25, the Veteran's maximum combined service-connected disability rating at any time during the pendency of this TDIU claim is 60 percent. Therefore, the Veteran has not met the minimum rating requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a). Even when combining the Veteran's disability of the knees as one disability, and thus obtaining a rating of 40 percent for the knee disorder (the same could be done with the Veteran's hearing loss and tinnitus disabilities), a TDIU is unwarranted because the Veteran does not have a combined rating of at least 70 percent. Likewise, the Veteran clearly does not have just one service-connected disability. 38 C.F.R. § 4.16(a). A TDIU under § 4.16(a) cannot be allowed as the criteria have not been met. The Board must now consider the question of whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities pursuant to 38 C.F.R. §4.16(b), such that referral to the Director of the VA Compensation and Pension Service for consideration of an extraschedular TDIU is warranted. In this regard, the August 2010 VA examiner provided a brief review of the Veteran's medical and occupational history and elicited the Veteran's current bilateral knee symptoms prior to performing a contemporaneous physical examination. The assessment was degenerative joint disease/osteoarthritis, bilateral knees. The August 2010 VA examiner provided a "Statement of Individual Unemployability" as follows: Because of the degenerative changes in both of [the Veteran's] knees, the [Veteran] would not be a candidate for any type [of] employment that would require walking/standing for over 2 to 3 minutes, frequent change of position from sitting to standing, heavy lifting over 10 pounds, or any type of bending or standing. The report of a July 2010 VA audiological examination includes the comment from the examining clinician that the Veteran "would most likely have difficulty in a work environment in which auditory communication is critical." The evidence pertinent to the period from 2009 - 2013 includes VA outpatient medical records showing ongoing treatment of the Veteran for complaints relating to his knees, hearing loss and tinnitus. The Veteran was prescribed electronic hearing aids and regularly used a cane and occasionally braces as assistive supportive devices for his knees when ambulating. The report of an October 2012 examination for housebound status or regular aid and attendance indicates that the Veteran was disabled by multiple systemic disabilities, including marked degenerative joint disease that significantly decreased his ambulation capacity. He was deemed able to leave his home on a daily basis, but not without the assistance of an ambulation device such as a cane or knee braces. He was also deemed able to ambulate a distance of one city block before needing to rest. Written statements and the oral testimony of the Veteran and his witness at his May 2013 Board hearing show that he has a high school education. His post-service career was in agricultural farming. He subsequently worked for a seed company (which entailed physical labor in handling heavy sacks of seed grain). He also indicated that he was employed at a pet shop and then at a recreational campground, before finally working as a custodian at Colorado State University before ending his employment in 1983 due to problems with his service-connected bilateral knee disability. The Veteran also related a history of cardiovascular disease that was also a contributing factor in his decision to quit working, with heart surgery in 1989 but no further active cardiovascular problems reported since then. The Veteran indicated that he was deemed to be a candidate for replacement of each knee with a prosthesis, but that he chose to decline undergoing any further elective surgery for his knee disability. He indicated that if he was able to stand and walk normally for extended periods of time, he would have preferred to be employed in some capacity, for example as a greeter at a discount department store. He reported that he enjoyed gardening and being outdoors, but his ability to engage in any activities involving these interests was prevented or otherwise severely curtailed by his impaired knees. The report of an August 2013 VA orthopedic examination provided a brief review of the Veteran's medical and occupational history and elicited the Veteran's current bilateral knee symptoms. The assessment was osteoarthritis and medial meniscus tears, bilateral knees. The August 2013 VA examiner provided the following opinion and commentary regarding the occupational impact of the Veteran's bilateral knee disability: [The Veteran's service-connected bilateral knee disability] limits his ability to stand and walk [and] impairs his ability to perform any job-related duties that require standing and walking. The bilateral knee condition does not preclude him from performing activities that are involved with a sedentary type of occupation. He would be able to perform those duties that do not require standing or walking. With regard to the occupational impact of the Veteran's service-connected bilateral hearing loss and tinnitus, an August 2013 VA audiological examination reiterated the prior examination opinion of August 2010 in stating that the Veteran "may have difficulty in a work environment in which auditory communication is critical," and while that the Veteran's tinnitus was intermittent and occasional painful and accompanied by a sensation of water in his ears, it "would have minimal impact in a work environment [as] it is intermittent and lasts only a few seconds at a time. In view of the foregoing discussion, the Board finds that the preponderance of the evidence of record does not show that the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), or that he is unable to obtain and maintain a substantially gainful occupation because of the severity of his service-connected bilateral knee disability, bilateral hearing loss, and tinnitus. Although the Veteran's educational background and work history in farming, agriculture, and building maintenance clearly demonstrates that his vocational experience is in occupations involving the type of manual labor that he is now precluded from engaging in because of his impaired knees, he is nevertheless still clinically deemed to be capable of sedentary employment. The Board notes that the Veteran presented the job of a department store greeter as being an occupation that he believed he could perform if it did not entail prolonged standing and walking, and it does not seem to be beyond the realm of possibility that such a job could be made to accommodate the Veteran and permit him to greet customers from a seated position. As for his hearing loss disability, the Board notes that while he may have difficulty in a work environment in which auditory communication is critical, this in itself does not mean that he is precluded from all potential positions of gainful employment as there are sedentary jobs whose duties do not require constant or even substantial auditory communication (for an example, a librarian clerk). As for the Veteran's tinnitus, the medical evidence has indicated that this disability would only impose minimal impact on the Veteran's individual occupational capacity due to its intermittent nature. Therefore, the Veteran's claim for a TDIU under the regulatory provisions of 38 C.F.R. § 4.16(a) must be denied. Furthermore, in view of this preceding discussion, the Board also finds that there is no basis to refer his TDIU claim to the Director of the Compensation & Pension Service for consideration of an extraschedular grant of a TDIU under § 4.16(b). The clinical evidence demonstrates that he is objectively deemed to be capable of obtaining and maintaining gainful employment in a sedentary capacity despite the occupational impairment associated with his knees and hearing loss, which respectively restrict him from performing work-related tasks that involve prolonged standing and walking, or employment where auditory communication is critical. Because the evidence in this case is not approximately balanced with respect to the merits of his TDIU claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs