Citation Nr: 1332028 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 12-11 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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). The Veteran served on active duty from August 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Muskogee, Oklahoma in October 2012. A copy of the hearing transcript has been associated with the claims file. The Board then remanded the issue of entitlement to a TDIU in a May 2013 rating decision for additional evidentiary development. The case now returns to the Board for further review. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. The Veteran is service connected for bilateral hearing loss (70 percent), a left shoulder disability (20 percent), tinnitus (10 percent), tropical blood disease (10 percent), and shell fragment wounds of the left hand and back (0 percent); his combined rating during the period on appeal is 80 percent. 2. The Veteran's service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in May 2011was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date. See Dingess. Therefore, he received complete notice regarding his claim for a TDIU. As noted above, the Veteran also testified at a Board hearing in October 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. By contrast, the hearings focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Notably, the Board remanded the Veteran's claim in May 2013 specifically to obtain an opinion as to the impact of the Veteran's service-connected conditions on his employability. A review of the claims file reveals that the Veteran's VA treatment records, lay statements, and hearing transcript have been associated with the claims file. The Veteran has not identified any additional records that are relevant to his claim. Although he testified that he was receiving Social Security Administration (SSA) benefits, he specifically stated that these benefits were based on age rather than disability. Therefore, their relevance to the claim on appeal has not been established. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide an opinion as to the effect of the Veteran's service-connected disabilities on his employability. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board's May 2013 remand instructions have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. TDIU A. Applicable Law A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. However, disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). The Veteran filed his claim for TDIU in March 2011. During this period, service connection has been in effect for bilateral hearing loss (70 percent), a left shoulder disability (20 percent), tinnitus (10 percent), tropical blood disease (10 percent), and shell fragment wounds of the left hand and back (0 percent). His combined rating during the period on appeal is 80 percent. Therefore, he meets the schedular requirements for a TDIU. Remaining for resolution is the question of whether there is probative evidence of his unemployability on account of his service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). As the Court explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the U.S. Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), which stated that it is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore at 358. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100 percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). B. Evidence The Veteran underwent VA examinations in June 2011. The examining audiologist stated that the functional impairment caused by the Veteran's hearing loss and tinnitus was difficulties communicating with others in person or on the phone. When driving, he would not be able to hear sirens from emergency vehicles. The Veteran also underwent a general VA examination, and the examiner noted that the Veteran's left shoulder condition left him unable to reach above chest level with his left arm. The Veteran testified at an October 2012 Board hearing. He stated that his highest level of education was high school. He previously worked as sign painter. However, he could no longer hold a brush, and stated that he dropped things due to arthritis. He also testified that he "could not stand" exposure to loud noises, such as a saw or barking dog. Given his disabilities, education, and work experience, he could not hold down a sedentary job. He stated that any job that required reading or writing would be difficult for him. He had tried jobs involving sacking or stocking groceries, but he could not lift boxes or do any type of overhead work. He also had general difficulties communicating with people. In additional statements, he referenced difficulties associated with his knees and eyes. An additional VA audiological opinion was obtained in June 2013. The examiner stated that the hearing loss and tinnitus reported by the Veteran typically interfere with word understanding in any type of competing noise. He may have difficulty hearing spoken guidance, instructions, or comments from other workers when in noise. He may also have difficulty understanding telephone communication. However, once he understands the topic at hand, hearing loss and tinnitus would not interfere with the completion of physical or sedentary work. Finally, a general VA opinion was obtained in July 2013. The examiner stated that he reviewed the claims file. When viewing the summation of the effect of all service-connected allegations, there were no objective findings of any impairment of body related to his service-connected conditions which precluded the Veteran from all substantially gainful employment. The examiner noted that the Veteran did not allege unemployability due to his back or left hand conditions. His service-connected blood disease was an urticaria condition. While his left shoulder condition limited overhead activities and lifting, the Veteran worked many years as a sign painter without decreased work capacity due to non-dominant left hand conditions. C. Analysis Based on the evidence, a TDIU is not warranted in this case. Although the Veteran meets the schedular criteria for a TDIU, the overall weight of the evidence is against a finding that his service-connected disabilities preclude him from maintaining substantially gainful employment. The VA opinions in this case collectively state that the Veteran has difficulties with communicating as a result of his hearing loss and tinnitus, and that he has limited function of his left arm due to his left shoulder disability. However, the June 2013 VA examiner specifically stated that once the Veteran understands a topic, his hearing loss and tinnitus would not preclude physical or sedentary employment. The July 2013 examiner stated that, historically, the left shoulder disability did not prevent the Veteran from previously working as a sign painter, and the total effect of his disabilities would not otherwise prevent substantially gainful employment. There is no competent opinion to refute these conclusions or to otherwise suggest that the Veteran's service-connected disabilities render him unable to substantially follow gainful employment. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain functional limitations associated with his service-connected conditions. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, he has not demonstrated the necessary knowledge or expertise to offer a competent opinion as to whether his service-connected disabilities preclude substantially gainful employment. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the impact of disabilities on employability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, in discussing his ability to work, the Veteran referenced impairment associated with his knees and eyes. Because he is not service-connected for knee or eye disabilities, these statements do not support his contentions. His testimony is not competent evidence of unemployability, and has little probative value when weighed against the VA opinions of record. For these reasons, a TDIU is not appropriate in this case. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities, alone, preclude him from obtaining and maintaining substantially gainful employment. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Entitlement to a TDIU is denied. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs