Citation Nr: 1335267	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  07-17 265	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an increased rating in excess of 10 percent for bilateral tinnitus on an extraschedular basis.

2.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Grabia, Counsel



INTRODUCTION

The Veteran served on active duty from September 1949 to February 1953 and from July 1953 to August 1974. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part denied entitlement to a rating in excess of 10 percent for bilateral tinnitus. 

In a June 2009 decision, the Board denied entitlement to an increased rating for tinnitus on a schedular basis.  The claim was remanded for consideration of an increased rating for bilateral tinnitus on an extraschedular basis.  The appeal was again remanded in November 2009.

The U.S. Court of Appeals for Veterans Claims (Court) held that a TDIU is an element of all claims for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

Given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice and the issue is properly before the Board as part of the appeal for an increased rating.

In April 2012, the C&P Director denied an award of an increased rating for tinnitus on an extraschedular basis.  Since the issue has been considered by the C&P Director, the Board may now review the Director's decision.  Bowling v. Principi, 15 Vet. App. 1 (2001). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a) (2) (West 2002). 


FINDINGS OF FACT

1.  The Veteran's tinnitus is not manifested by symptoms outside of those contemplated by the rating schedule. 

2.  The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment for which he would otherwise be qualified.


CONCLUSIONS OF LAW

1.  The criteria for an increased rating for tinnitus on an extraschedular basis have not been met.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013).

2.  The requirements for a TDIU are met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). 

The RO provided the Veteran with substantially compliant notice by two letters dated in March 2006, prior to the May 2006 decision denying an increased rating.  Another letter was sent in May 2008 prior to a June 2008 supplemental statement of the case denying an increased extraschedular rating.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The claims file contains the Veteran's service treatment records (STRs), private and VA treatment records, statements provided by the Veteran and a statement from his former employer.  The Veteran was afforded numerous VA examinations.  In addition the Claims file was forwarded to the C&P Director for a determination on an extraschedular rating and TDIU.  

VA has substantially complied with the notice and assistance requirements of the VCAA and there is no additional notice or assistance that would be reasonably likely to assist the Veteran in substantiating the claim.

There has been substantial compliance with the remand instructions.  The Board's first remand sought to afford the Veteran an additional examination, and to forward the case to VA's Director, Compensation and Pension Service (C&P Director) for an extraschedular determination.  The examination was conducted, but the case was returned to the Board without review by the C&P Director.

In November 2009, the Board remanded the claim to insure compliance with its prior remand instructions, give the Veteran an opportunity to submit employment records; and consider the entitlement to TDIU.  As noted, the case was referred to the C&P Director after the Veteran was afforded examinations.  The Veteran submitted a statement from his former employer, but did not submit additional employment records or authorize VA to obtain additional records.

II.  Legal Criteria

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  

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 concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate for an increased rating claim when the record shows distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant 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.  Hart v. Mansfield, 21 Vet. App. 506 (2007).

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (1) (2013). 

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b) (1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

The Board determined that referral was warranted because there was evidence that the rating schedule was inadequate.  The Board noted the Veteran's reports that tinnitus caused him great difficulty hearing normal conversations, using the telephone and understanding television.

The Director of C&P determined that the disability from tinnitus did not warrant an extraschedular rating.  The Board; however, has the authority to review this determination.  Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009).  

The evidence against an extraschedular rating includes the fact that the Veteran is service connected for bilateral hearing loss, evaluated as 50 and 90 percent disabling during the course of the appeal.  That disability is evaluated under schedular criteria that contemplate difficulty hearing, including in everyday functioning.  38 C.F.R. § 4.85 (2013).  Inasmuch as the Veteran is receiving compensation that contemplates the same symptoms he attributes to tinnitus, it would constitute prohibited pyramiding to evaluate those symptoms under multiple diagnoses.  38 C.F.R. § 4.14 (2013).  

Assuming for the sake of argument that the rating criteria were somehow inadequate, multiple VA examiners have found that the tinnitus disability has no impact on employment, and the Veteran has not reported specifically that tinnitus has caused marked interference in employment.  Hence, the second step in the Thune test would also not be met.

In short, the rating schedule contemplates the Veteran's symptoms, albeit under a different diagnostic code, for which he is being compensated; hence he does not meet the first step of the Thune test and even if he could meet that step, he would not meet the second.  The weight of the evidence is against an extraschedular rating for tinnitus.  38 U.S.C.A. § 5107(b) (West 2002).

V.  TDIU

TDIU is a potential element of all increased rating claims.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case the veteran has satisfied each of these requirements in conjunction with his claim for an increased rating for tinnitus.

A TDIU is assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation.  38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. 

Age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating.  38 C.F.R. § 4.19.  Factors to be considered are the Veteran's employment history and his educational and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).

Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; 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. 

VA policy is; however, to grant TDIU in all cases where a Veteran is unable to work due to service connected disability.  Rating boards are required to submit to the Director, C&P for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). 

When evaluating a claim for a TDIU, the central 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).  As noted, consideration may not be given to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

In essence, the unemployability question, that is, the Veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of a claimant. See Moore v. Derwinski, 1 Vet. App. 83 (1991).  Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned 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.

Marginal employment may also be held to exist, on a facts-found basis, or when earned annual income is less than the poverty threshold for one person.  38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342 (2000). 

The controlling VA regulations provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991).

In order for a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor that takes his case outside of the norm.  If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability.  Gary v. Brown, 7 Vet. App. 229 (1994). 

Analysis

Prior to July 29, 2013, the Veteran did not meet the schedular criteria for TDIU.  He was service connected for: bilateral hearing loss rated as 50 percent disabling, hypertension rated as 10 percent disabling, and tinnitus rated as 10 percent disabling.  His combined disability rating was 60 percent.  38 C.F.R. § 4.25 (2013).

As of July 29, 2013, the Veteran's combined rating is 90 percent.  (Bilateral hearing loss rated as 90 percent disabling, hypertension rated as 10 percent disabling, and tinnitus rated as 10 percent disabling).  Thus, the Veteran meets the percentage requirements for consideration of a TDIU on a schedular basis.  38 C.F.R. § 4.16(a). The question remains whether the Veteran's service-connected disabilities, regardless of age, prevents him from securing and following substantially gainful employment per 38 C.F.R. § 4.16(b).

The Veteran's certificate of discharge from service shows that he was trained in as a management engineering technician.  His primary duty was in manpower management support, which was related to the civilian occupation of methods management.

At a VA examination in April 1977, he reported that he was self employed

At a hearing conducted at the RO in April 1994, the Veteran testified that in 1992 he had been terminated from employment after informing his employer that he could not complete a trip.  He reported difficulty hearing on the phone and that his ears would become stopped up due to air travel.

The Veteran's VA Form 22-8873, change of program of education, dated in February 1985, the Veteran reported that he had established a good record in the security field.  He reported receipt of an associate's degree and completion of a program in electrical installation and maintenance.   

The Veteran has asserted that he "had to leave a well paying job at the age of 59."  He noted that he worked for Guardsmark, Inc., until May 1992.  He could not communicate effectively with anyone, and could not use the telephone and therefore could not perform his duties.  He had to return home and has not been employed since that time.  

As previously noted numerous VA audiology examinations determined that tinnitus standing alone did not cause the Veteran to be unemployable.  It was further noted that medical literature did not support a correlation with the severity of tinnitus and unemployability.

In February 2011, the Veteran's former employer, a security services firm, reported that the Veteran had been employed from March 1978 to May 1992.  He had left this employment voluntarily without notice.  This employment involved a demanding schedule, involving heavy travel and long hours.  The employer added that the Veteran had informed it that "there were other considerations involving him being partially deaf that was a primary concern for his leaving employment with our company."

In addition a VA audiologist in August 2011 noted that tinnitus in conjunction with other service connected conditions would not preclude gainful employ for which the Veteran would otherwise be qualified.  Severe hearing loss would preclude employment requiring frequent telephone communication.  Employment requiring significant communication with clients or co-workers would "present challenges."  Tinnitus would not impact employment.

In April 2012 the C&P Director opined that while severe hearing loss does present some difficulty with some occupations, it did not impede on the Veteran's ability to secure and follow substantially gainful employ.  Entitlement to TDIU was therefore denied.

At a July 2012, examination the audiologist referred to the August 2011 VA examination (signed in September 2011) which stated that the Veteran's tinnitus did not adversely impact his employment abilities; and, while his hearing loss limited his employment opportunities it did not eliminate them.   The examiner noted that an opinion on hypertension and unemployability was not within the scope of an audiologist's expertise. 

In July 2012, a general medical examiner opined that hypertension was well controlled and would not preclude any type of employment and would not change the opinion previously provided with regard to the hearing problems.

At an April 2013, examination the examiner opined that the Veteran's tinnitus did not impact employment and that hearing loss would not preclude gainful employment because there were many individuals who functioned well in employment notwithstanding severe hearing loss or deafness and there were many careers where hearing loss would not be a factor.

In July 2013, another VA audiologist conducted an examination and commented that opinions as to individual unemployability were beyond the scope of an audiologist's practice.  She added however, that the Veteran would have significant difficulty in employment that placed high demands on his hearing ability, but could perform other unspecified types of employment.

There is some uncertainty surrounding the circumstances in which the Veteran left his last employment in 1992, but it appears that the employment was terminated by the Veteran, rather than his employer.  The Board's inquiry does not end there; however.  The Veteran's service connected hearing loss has increased since his last employment and is now rated 90 percent disabling.  While examiners have noted that there are types of employment for which hearing loss or even deafness would not be a barrier, the question is whether the Veteran's education and occupational experience qualify him for such employment.

The Veteran worked as a radio operator, driving trucks and in management during his long military career.  All of these jobs would seem to require reliance on the ability to hear.  The Veteran's post-service employment was in a job that required extensive air travel, communication with clients and use of the telephone.  It thus does not appear that the Veteran's education and occupational experience qualify him for employment that he could perform with his current level of hearing loss.  Accordingly, TDIU is granted.


ORDER

Entitlement to an increased rating on an extraschedular basis for tinnitus is denied.

Entitlement to TDIU is granted.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs