Citation Nr: 1343098 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-34 526A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to July 15, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This matter is on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the appeal is currently with the RO in Denver, Colorado. This appeal was remanded by the Board in July 2011 for further development and is now ready for disposition. FINDING OF FACT For the period prior to July 15, 2008, the evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period prior to July 15, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in September 2005 and May 2006 that fully addressed all notice elements The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. While the Board recognizes that the May 2006 letter was not sent prior to the initial rating decision, the issue was subsequently adjudicated by the RO most recently in an April 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The issuance of fully compliant notice, followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect. Prickett v. Nicholson, 20 Vet. App. 370 (2006). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records, and the Veteran submitted his own statements in support of his claim. VA examinations relevant to the issue on appeal were also obtained in September 2006, and in February and July 2008. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, they are predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, it is noted that this appeal was remanded by the Board in July 2011 in order to determine whether the Veteran is receiving disability benefits from the Social Security Administration (SSA). 38 U.S.C.A § 5103A(c)(3); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain). The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was contacted in July 2011 and indicated that he was not receiving disability benefits from the SSA. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in April 2012. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). TDIU Total disability is considered to exist when there is any impairment which 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 such disability, it must be rated at 60 percent or more; if there are two or more 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. 38 C.F.R. § 4.16(a) (2013). If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2013); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Veteran submitted a claim for TDIU in July 2005, where he specifically asserted that his hearing loss has affected him "in an extremely adverse way since being discharged from active duty." He added in November 2005 that his inability to hear caused such difficulty such that he was substantially unable to communicate. It has also caused him to lose self-esteem, which leads to episodes of withdrawal. When he submitted his claim, the Veteran was service-connected for only bilateral hearing loss and tinnitus, with a 10 percent rating for each disability. His total disability rating was 20 percent, and is less than the schedular requirements for TDIU. Moreover, while he was service connected for an acquired psychiatric disorder in a May 2008 decision, with a 50 percent rating effective July 17, 2007, this raised his total disability rating to only 60 percent, which is still below the schedular requirements for TDIU. In a subsequent rating decision in August 2008, the Veteran's disability rating for his psychiatric condition was increased to 70 percent and his overall disability rating to 80 percent, effective July 15, 2008. As he now met the schedular requirements for TSIU, the RO also granted TDIU for the period since July 15, 2008. As such, the only remaining issue on appeal is whether TDIU is warranted prior to this date. Even though the Veteran fails to meet the schedular criteria for entitlement to TDIU prior to July 15, 2008, the Board must now consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities on an extraschedular basis. However, after a review of the evidence, the Board determines that TDIU is not warranted on this basis. First, prior to the time the Veteran was service-connected for his acquired psychiatric disorder (July 17, 2008), there is no indication that his hearing disorders rendered him unable to maintain gainful employment. Notably, when he was evaluated by a VA audiologist in September 2006, he stated that he had difficulty hearing, even though he wore hearing aids. He also indicated that his tinnitus consistently interfered with his ability to understand communication, which was most pronounced while on the telephone. However, the VA audiologist did not believe that these disorders necessarily rendered the Veteran unemployable. Rather, it was noted that the Veteran was able to hear with his hearing aids, even if his hearing acuity was diminished. Moreover, the audiologist felt that the Veteran "could function in a work environment that does not require extensive face-to-face or telephone communication." A second VA audiologist in July 2008 substantially agreed with these observations and opinions. While the Veteran was subsequently service-connected for an acquired psychiatric disorder, there is no competent evidence to indicate that he was unemployable due to the now combined effects of his service-connected disabilities. For example, when he underwent a VA psychiatric examination in February 2008, the examining psychiatrist believed that the Veteran would be able to work in "some sort of employment." Moreover, when the Veteran stated that "with his hearing, he cannot deal with people," it may be inferred that he considers his hearing loss and tinnitus to be the primary disorders impacting his employability. However, as was discussed above, the clinical evidence does not indicate that he is actually unemployable due to his audiological limitations. In considering whether the Veteran is entitled to TDIU, the Board has also considered his statements regarding the impact of his service-connected disabilities on his ability to remain employed. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence that is to be determined after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to state the level to which his service-connected disabilities render him unemployable. On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities has been provided by the medical examiners who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria for TDIU. Even though not all of the VA examiners rendered a specific opinion regarding whether the Veteran was unemployable, this is not a significant discrepancy, as entitlement to TDIU is determined by the Board, not the examiners. See Geib v. Shinseki, No. 2012-7164, 2013 WL 5788671 (Fed. Cir. October 29, 2013). Therefore, as the evidence also does not establish that the Veteran is unemployable due to his service connected disability during the time period in question, the appeal is denied. ORDER Entitlement to TDIU for the period prior to July 15, 2008, is denied. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs