Citation Nr: 1339949 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 13-29 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri (RO). 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). FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, the United States Court of Appeals for Veteran's Claims Court (Court) held that VA must inform the Veteran 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 Veteran is expected to provide. 18 Vet. App. 112, 120-21 (2004). In a letter dated July 2011, VA satisfied its duty to notify the Veteran. Specifically, the RO notified the Veteran of the information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The July 2011 letter also notified the Veteran about the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran with regard to the issues adjudicated on the merits herein. The Veteran's post-service medical treatment records and a March 2012 Social Security Administration (SSA) correspondence, indicating that SSA had no medical records for the Veteran, are of record. VA provided the Veteran with VA examinations in August 2011 and May 2012 and VA audiological examinations in April 2012 and August 2011. The Board notes that the claims file was not reviewed by the VA examiners or audiologists. However, the May 2012 VA examiner reviewed electronic records of VA care at the St. Louis VAMC. The Board observes that lack of the claims file review alone does not render the opinions invalid if the history provided to the VA examiners and VA audiologists was an accurate reflection of the Veteran's history as documented in the file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board finds that the VA examiner and audiologist recorded the Veteran's reported pertinent medical history and current complaints, which are consistent with the information contained in the claims folder, conducted an appropriate examination, and rendered appropriate diagnoses and opinions with rationale consistent with the remainder of the evidence of record. In the October 2013 substantive appeal, the Veteran's representative noted that it did not appear that a VA examiner considered the collective effects of all the Veteran's service-connected disabilities on his employability. The Board notes that the VA audiological opinion addressed the individual and collective effects of the Veteran's hearing loss and tinnitus, while the VA medical opinions addressed the collective effects of the residuals of the Veteran's cold injuries. The Veteran's representative seems to suggest that the Board is required to obtain a single VA medical opinion addressing the impact of all of the Veteran's service-connected disabilities on his ability to engage in substantially gainful employment. While the Board acknowledges that such an opinion has not been obtained, the Board finds that one is not warranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently addressed this issue in Geib v. Shinseki, 2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013). The Federal Circuit stated that: although the VA is expected to give full consideration to "the effect of combinations of disability," neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert. Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner . . . the VA is required to obtain a medical examination or opinion only when 'necessary to make a decision on the claim.' . . .[where] separate medical opinions address the impact on employability resulting from independent disabilities, the VA is authorized to assess the aggregate effect of all disabilities. Id. at *3-4 (citation omitted). The Board acknowledges that shortly after the Federal Circuit's decision in Geib, the Court issued Floore v. Shinseki, 12-2017, 2013 WL 5913227 (Vet. App. Nov. 5, 2013). In Floore, the Court stated, "the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis." Id. at *4. The Court found that the Board did not err in failing to obtain a combined-effects medical examination report or opinion in denying entitlement to TDIU due to multiple service-connected disabilities, where the Board explained that such a medical opinion was not needed because the medical reports of record provided sufficient information to render a decision. Id. In this case, as in Floore, the Veteran has not suggested that the VA opinions were inadequate, other than the fact that none of them addressed the combined effects of the Veteran's service-connected disabilities on his ability to obtain substantially gainful employment. Accordingly, the question is whether the medical evidence of record sufficiently describes the impact, or lack thereof, of the Veteran's service-connected disabilities on his employability to allow the Board to make an informed decision. After reviewing the examination and audiological reports, the Board finds that the reports sufficiently described the impact of the Veteran's hearing loss, tinnitus, and residuals of his cold injuries, so as to allow the Board to make an informed decision regarding entitlement to TDIU. There are two thorough examination reports concerning the impact of the residuals of the Veteran's cold injuries on his ability to work. The May 2012 and August 2011 medical reports and opinions are consistent with one and another as well as the evidence of record. Additionally, the May 2012 VA opinion not only states that the Veteran would be able to work in a sedentary job but also describes what the examiner considered an appropriate work environment. In regards to the Veteran's hearing loss and tinnitus, the August 2011 VA audiologist opinion stated that his hearing loss and tinnitus, alone or in combination, would not prevent the Veteran from obtaining or maintaining gainful employment. The VA audiologist explained that many individuals with much greater degrees of impairment are able to maintain substantially gainful employment. The Board notes that the VA audiologist was requested to address how the Veteran's impairments would impact his ability to perform physical and sedentary employment. The VA audiologist did not rule out physical or sedentary employment and opined that the Veteran would be able to maintain substantially gainful employment. Under the facts of this appeal, there is no conflict between the VA examiners' opinions that the Veteran is able to maintain substantially gainful sedentary employment and the VA audiologist's opinion that the Veteran is able to maintain substantially gainful employment. As such, the Board finds that a singular VA medical opinion addressing the impact of all of the Veteran's service-connected disabilities on his ability to engage in substantially gainful employment is unnecessary. Thus, the Board finds that the VA examination and audiological reports, taken together, are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claim, de novo. Legal Criteria Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2013). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. 38 C.F.R. § 4.16(a) (2013). In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose, 4 Vet. App. at 363. Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a Veteran currently is unemployable. 38 C.F.R. § 4.16(a) (2013). However, consideration may be given to the Veteran's level of education, special training, and previous work experience. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service-connected for residuals of a cold injury of his right and left lower extremity also claimed as pain, tingling and numbness in the feet (30 percent respectively); residuals of a cold injury of his left upper extremity, also claimed as pain, tingling, and numbness in the hands (30 percent); residuals of a cold injury of his right upper extremity, also claimed as pain, tingling, and numbness in the upper extremities (30 percent); residuals of a cold injury of his right ear (10 percent); residuals of a cold injury of his left ear (10 percent); tinnitus (10 percent); and bilateral hearing loss (0 percent). The Board finds that the minimum schedular criteria for TDIU are met. 38 C.F.R. § 4.16(a) (2013). The question therefore becomes whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The Board finds that the most probative evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. In his April 2011 VA Form 21-8940, the Veteran reported that he worked full-time as a material handler from 1952 until 1973. He noted that he had completed high school and had two years of college education. The Veteran indicated that he left his last job because of his disability, but had not tried to obtain new employment since that time. The Veteran also reported that with his hearing deteriorating he had difficulty hearing warning sirens, and that his feet made standing on concrete floors increasingly painful. The Veteran stated that he had the time in and went out on retirement. There is a September 2009 VA audiologist report of record. Although the report noted diagnoses of tinnitus and bilateral hearing loss, it did not address the impact of these disabilities on the Veteran's ability to work. Similarly, the Board notes that there is a March 2010 VA examination report and private treatment records from Dr. Min Pan, spanning July 2005 to March 2006, concerning the residuals of the Veteran's cold injuries. However, neither the private records nor the VA examination report address what, if any, impact these disabilities had on the Veteran's ability to work. The March 2010 VA examination report does, however, note that the Veteran had been retired for the past 25 years, or since approximately 1985, and that prior to retiring he worked as a material planner. The Veteran was provided a VA examination in August 2011. The Veteran reported that he had cold sensitization of his hands, feet, and ears. The VA examiner noted that the Veteran did not have any amputations or loss of tissue, nor remember any blistering. The VA examiner indicated that the Veteran had no history of Raynaud's phenomenon, causalgia or reflex sympathetic dystrophy type symptoms, but had hyperhidrosis, paresthesias, and numbness to all ten fingertips and toes. The VA examiner found that the Veteran had Heberden's nodes of the distal interphalangeal joint rows, but otherwise his fist was complete and his grip strength was 5/5 bilaterally with no intrinsic muscle atrophy. The examiner reported that monofilament testing showed perceptible, but blunted responses at the distal and middle phalanges of all 10 fingers but with better appreciation proximally. Vibratory sensation was diminished at the fingertips in comparison to the wrists, absent at both great toes, and markedly decreased at both ankles. The Veteran had mild interossei atrophy of both feet dorsally, but did not have foot drop, peeling. or active fungal involvement. The Veteran did not have dependent edema at the ankles, but had diminished perception to touch at the dorsums of both feet. The examiner noted that the Veteran had normal alignment of the tendons bilaterally and no pain on mobilization of the Achilles or midfoot. All toes were present and had full range of active and passive motion, the Veteran's gait and station were normal, and he was independently ambulatory. The examiner stated that based on his service-connected bilateral hands and feet disabilities, it was that examiner's opinion that the Veteran retained the requisite strength and endurance factors, regardless of his age, to enter the labor market in a sedentary capacity. In regards to the Veteran's service-connected residuals of the cold injuries to his ears, the examiner noted that the Veteran's ears were inspected and appeared normal in all respects. The Veteran was provided a VA audiological examination in August 2011. The audiology report noted that pure tone test results indicated hearing sensitivity within normal limits sloping to a severe sensorineural hearing loss in the right ear and a moderate sloping to severe mixed hearing loss in the left ear. Testing showed that the Veteran's word recognition scores were excellent bilaterally. The VA audiologist opined that the Veteran's hearing loss and/or tinnitus, alone or in combination, would not prevent the Veteran from obtaining or maintaining gainful employment. The audiologist reasoned that many individuals are able to do so with much greater degrees of impairment. In the Veteran's VA Form 21-8940 received December 2011, the Veteran reported that he had a high school education and that he had worked as a material planner until 1984. The Veteran reported that he had not left that job because of his disability and indicated that he had not tried to obtain employment since leaving that job. The Veteran also indicated that he had not received or expected to receive disability retirement benefits or workers compensation benefits. However, the Veteran asserted that his service-connected disabilities prevented him from obtaining and maintaining meaningful gainful employment, and that no employer would hire him due to his service-connected disabilities. In his January 2012 Notice of Disagreement, the Veteran's representative stated that the Veteran did not feel that any employer would hire him with his severe service-connected residuals of cold injuries and tinnitus. The representative reported that with the residuals of his cold injuries, the Veteran had great difficulty with gripping, driving, and standing or walking for long periods of time. The Veteran was provided with an additional VA audiology examination in April 2012. The audiology report did not specifically address employability. However, the report did note that the Veteran's hearing loss affected ordinary conditions of daily life, including the Veteran's ability to work. The Veteran reported that he had difficulty hearing television and the phone, and could not understand conversations, especially if there was any other noise around. In regards to his tinnitus, the audiologist noted the condition did not impact ordinary conditions of daily life, including his ability to work. The Veteran was provided with another VA examination in May 2012. The VA examiner opined that cold injuries of the Veteran's feet prevented active physical employment. The examiner opined that residuals from the Veteran's cold injury did not prevent or substantially interfere with sedentary employment. The examiner explained that by sedentary employment, the examiner meant six to eight hours per day standing or sitting at the Veteran's choice and not lifting more than 10 pounds and not repetitively or frequently squatting, stair climbing, or stooping from the waist. In the November 2013 informal hearing presentation (IHP), the Veteran's representative argued that although the August 2011 VA examiner noted that the Veteran could do sedentary work, the examiner failed to state what type of sedentary work the Veteran could do. The representative asserted that given the overall severity of his disabilities, TDIU is warranted. In consideration of the above, the Board finds that the most probative evidence does not reflect that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that the May 2012 and August 2011 VA examiners' opinions and the August 2011 VA audiological opinion are the most probative evidence of record. As noted above, the VA opinions were provided by medical professionals after examining the Veteran and considering his reported medical history and subjective complaints. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA medical examiners both opined that the residuals of the Veteran's cold injuries did not prevent or substantially interfere with sedentary employment. Although the Veteran's representative noted that the August 2011 examination report failed to indicate specific types of sedentary work the Veteran could perform, the Board finds that the two VA examination reports provide adequate detail for the Board to make an informed decision. The May 2012 VA opinion specifically explained what type of sedentary employment the Veteran could perform. The examiner stated that by sedentary employment, he meant six to eight hours per day, standing or sitting at one's choice, and not lifting more than 10 pounds (and not repetitively) or doing frequent squatting, stair climbing, or stooping from the waist. Although the examiner did not provide an exhaustive list of specific sedentary jobs the Veteran could perform, the examiner provided a sufficient description of sedentary employment to allow the Board to render a decision. In regards to the Veteran's hearing loss and tinnitus, the Board finds that the August 2011 VA audiology report is more probative than the April 2012 VA audiology report. As noted above, the April 2012 audiology report did not address or opine whether the Veteran's service-connected hearing disabilities precluded him from securing or following substantially gainful employment. Although the VA audiologist noted that the Veteran's hearing loss affected ordinary conditions of daily life, including the ability to work, this opinion was conclusory and the audiologist did not provide an explanation to support that opinion. As such, the August 2011 opinion, which did provide an opinion and rationale concerning the Veteran's employability, is more probative. See Nieves-Rodriguez, 22 Vet. App. at 304 (stating that an examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). The August 2011 audiologist found that the Veteran's hearing loss and/or tinnitus, alone or in combination, would not prevent the Veteran from securing and following gainful employment. The audiologist opinion was silent as to any limitation or restriction on the types of employment that would be suitable for the Veteran. Based upon the VA examination reports and the August 2011 audiology opinion, the Board finds that the competent evidence of record indicates that while the Veteran's ability to perform physical employment is impaired by his service-connected disabilities, he is nonetheless able to secure and follow substantially gainful sedentary employment. In reaching its decision, the Board has considered lay statements of the Veteran and his representative. The Veteran and his representative asserted that the Veteran's service-connected disabilities rendered him unemployable and noted that the Veteran did not believe that any employer would hire him because of his service-connected disabilities. Additionally, the Veteran submitted several statements noting that his bilateral hearing loss, tinnitus, and residuals from his cold injuries impaired him at his last job. Specifically, the Veteran noted that he had difficulty hearing warning sirens and that foot pain made it difficult to stand on the concrete floors. On his April 2011 VA Form 21-8940, the Veteran reported that he was last employed in 1973 and indicated that he left that job because of his disability. However, elsewhere in the form, the Veteran noted that while he had some impairment due to his service-connected disabilities, he had the time in and "went out on retirement." In his December 2011 VA Form 21-8940, the Veteran reported that he was last employed in 1984, and that he had not left his last job because of his disability. Based on the Veteran's conflicting statements regarding when and for what reason he became unemployable, the Board finds that the Veteran is not an accurate historian regarding his TDIU claim. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (noting that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the consistency of the witness testimony.). Even assuming the Veteran was an accurate historian, while the Veteran and his representative are competent to report observable symptoms, without the appropriate medical training and expertise, they are not competent to provide an opinion regarding the effect the Veteran's disabilities have on his employability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board attaches more probative value to the uncontradicted opinions rendered by the VA examiners and the August 2011 audiologist. While the Veteran's service-connected disabilities certainly impact his occupational functioning and preclude physical employment, the competent evidence of record does not establish that his service-connected disabilities, considered in combination, prohibit the Veteran from securing or following substantially gainful sedentary employment consistent with his educational attainment and occupational history. Based on the foregoing, the Board finds that the preponderance of the evidence is against entitlement to TDIU. As such, the doctrine of reasonable doubt does not apply. See 38 U.S.C.A. § 5107(b) (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, entitlement to TDIU is not warranted. ORDER Entitlement to TDIU is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs