Citation Nr: 1338129 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-42 185A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1965. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An October 2012 Board decision denied the claim. The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (CAVC/Court). A private attorney represented him in his appeal to the Court and continues to represent him before VA. The Office of General Counsel represented the Secretary of VA in the appeal to the Court. The parties filed a May 2013 Joint Motion asking the Court to vacate the Board's decision denying this claim and to remand this claim back to the Board for readjudication in compliance with directives specified. The Court granted that Joint Motion for Remand. In October 2013, the Veteran's attorney provided additional evidence comprised of a private vocational rehabilitation counselor's opinion, and the attorney waived the right to have the RO initially consider this additional evidence, preferring instead to have the Board consider it in the first instance. See 38 C.F.R. §§ 20.800, 20.1304 (2013). Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013). FINDING OF FACT With the benefit of this additional evidence the Veteran's attorney has submitted in support of the claim, since the January 23, 2009 receipt of this claim the Veteran has been incapable of obtaining and maintaining substantially gainful employment because of service-connected disability. CONCLUSION OF LAW Especially when resolving all reasonable doubt in his favor, the criteria are met for a TDIU effectively since January 23, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The VCAA was codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Board is fully granting this claim at issue. Hence, the Board need not discuss whether there has been compliance with these duty-to-notify-and-assist obligations because even if, for the sake of argument, there has not been, this would be inconsequential and therefore at most amount to nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Consider also that "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). This includes, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration. That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. 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. See also Faust v. West, 13 Vet. App. 342, 355 (2000). The Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). 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). Turning now to the facts and circumstances of this particular case. The Veteran's service-connected disabilities consist of his hearing loss, which is rated as 50-percent disabling; hemorrhoids, rated as 30-percent disabling; tinnitus, rated as 10-percent disabling; and scars on his scalp and left eyelid, which are residuals of lacerations, rated as noncompensable (i.e., as 0-percent disabling). These ratings combine to 70 percent. See 38 C.F.R. § 4.25. Consequently, he has one service-connected disability rated as at least 40-percent disabling, with sufficient additional disability to bring the combined overall evaluation to at least 70 percent. He therefore meets the threshold minimum rating requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a), so does not have to instead revert to the special, extra-schedular, provisions of § 4.16(b). Resolution of this claim thus rest entirely on whether he is capable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering the effect of his service-connected disabilities. The initial clinical opinions regarding his employability did not substantiate his claim, hence, the reason the Board previously denied this claim in October 2012. The July 2011 opinion of a VA audiological examiner had determined that any one disability, tinnitus or hearing impairment, did not preclude meaningful, gainful work in either physical or sedentary employment. While acknowledging these disabilities may cause functional difficulties in vocations that require localization of sound, as well as verbal communication when face-to-face communication is not possible, the examiner ultimately determined the Veteran's hearing loss and tinnitus did not preclude normal function if proper amplification and support are in place. A July 2011 general medical examination resulted in the opinion that the Veteran was capable of light-to-moderate duty employment, if he so chose. Notably, however, both the audiological and general medical examiners acknowledged they did not review any records in making their determinations. Later in June 2012, in compliance with a Board remand directive, a supplemental medical opinion was obtained after a review of the Veteran's claims file and with consideration of the collective effect of all of his service-connected disabilities as a whole, so in the aggregate rather than individually or compartmentally. But see Geib v. Shinseki, No.2012-7164, 2013 WL XXXXXXX, at *Y (Fed. Cir. Oct. 29, 2013) (In a TDIU determination, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities."); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this opinion, the VA examiner indicated he had reviewed all documented data and determined there was no objective data to sustain that the Veteran's service-connected disabilities, alone or in combination, precluded him from obtaining and maintaining substantially gainful employment commensurate with his level of education and prior work experience and training. Therefore, the examiner concluded the Veteran should be able to perform full duty employment if he so chose. Following the Board's prior denial of this TDIU claim, and the Veteran's appeal therefrom, the May 2013 Joint Motion for Remand granted by the Court instructed that a new comprehensive VA medical opinion regarding the Veteran's employment capabilities be obtained that was appropriately grounded in a clear and well-articulated rationale, inasmuch as the June 2012 opinion was considered to be conclusory. Since then, however, a July 2013 report from D.C.J., a private vocational rehabilitation consultant, following a claims file review and vocational interview with and testing of the Veteran, indicates as follows: [The Veteran's] entire work history has entailed employment within the carpentry/construction trades. ...In considering [the Veteran's] bilateral hearing loss and tinnitus it should be noted that not all individuals benefit from the use of hearing aids, some individuals are unable to discriminate environmental sounds or clearly understand speech even with the addition of hearing aids. ...It is the opinion of this consultant that even with bilateral hearing aids, [the Veteran] struggles with daily communication and understanding. Moreover, his ability to perform vocationally relevant past work is severely limited given the complex set of environmental conditions, e.g., noise from tools and machinery, proximity to the speaker and weather conditions such as wind. It is further this consultant's opinion that given [the Veteran's] longstanding hemorrhoid condition his ability to perform physically demanding work is compromised. [The Veteran] has worked his whole career in a physically demanding job. In assessing whether [the Veteran] has the ability engage in substantial gainful activity this consultant considered whether [the Veteran] has the necessary skills that can be used in (or transferred to) less physically demanding jobs. It is this consultant's professional opinion that [the Veteran] is significantly limited in vocational adaptability when considering sedentary work. Given the significant impact of the Veteran's service-connected conditions on his exertional and nonexertional work related functions, it is at least as likely as not that [the Veteran] is unable to obtain and retain substantially gainful employment. ...[I]t is my opinion to a reasonable degree of vocational certainty that it is at least as likely as not that [the Veteran's] service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation, and that this unemployability dates back to January 2009. Reviewing the aforementioned opinion, and resolving all reasonable doubt in the Veteran's favor pursuant to VA's benefit-of-the-doubt doctrine, the Board sees fit to now grant a TDIU on the basis of this additional evidence. See 38 C.F.R. § 4.3. The July 2013 opinion of the vocational rehabilitation consultant provides a reasonably well-informed and factually supported assessment of unemployability by reason of service-connected disability as of January 2009. One component of the opinion rationale cites physical limitations occasioned by service-connected disability. Another supporting basis therein consists of employment history, of entirely nonsedentary work in the construction industry with no transferable occupational capacities immediately apparent to the evaluator, along with level of educational attainment, in this case a high school equivalency degree (GED). These factors may be taken into account in determining the feasibility of nonsedentary employment. See Beaty v. Brown, 6 Vet. App. 532 (1994). Given the opinion author's expertise indicated as vocational consultant, and supporting opinion rationale, the Board will assign probative weight to the conclusion provided notwithstanding that he does not have a strictly medical background. See generally, Williams v. Brown, 4 Vet. App. 270, 273 (1993). See, too, Goss v. Brown, 9 Vet. App. 109, 113 (1996). Accordingly, the criteria for a TDIU are deemed met. ORDER A TDIU is granted, as of January 23, 2009, subject to the statutes and regulations governing the payment of VA compensation benefits. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs