Citation Nr: 1320090 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-26 798 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Son ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to June 1946. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 RO decision, which denied entitlement to TDIU, and a January 2011 RO decision, which denied service connection for cause of death. The appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the Louisville, Kentucky, RO in April 2012. A transcript of the hearing has been associated with the record. The Board notes that, 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) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the 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, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the appellant's testimony that she had actual knowledge of the elements that were lacking to substantiate her claims. Significantly, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. 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). The Board notes that additional medical evidence was associated with the claims file after the statement of the case (SOC) and the most recent supplemental statement of the case (SSOC) were issued with respect to the claims on appeal. However, as this evidence relates to the appellant, and not the Veteran, the Board finds no prejudice in proceeding to adjudicate these claims. Further, VA obtained a Veterans Health Administration (VHA) medical opinion regarding these claims in January 2013. The appellant and her representative were notified of this opinion and given ample opportunity to respond. However, as neither indicated that they wished the claims to be returned to the RO for consideration of this new evidence, the Board finds no prejudice in proceeding to adjudicate these claims. The appellant submitted an October 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. As such, the issue of entitlement to special monthly compensation based on the need for aid and attendance or housebound status has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died on August [redacted], 2010, and lists twelve different diseases that either caused or contributed to his death or were underlying diseases at the time of his death. These causes were cardiac, pulmonary, and renal in nature. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) (50 percent), bilateral sensorineural hearing loss (40 percent), and bilateral tinnitus (10 percent). The Veteran met the percentage requirements for TDIU. 3. A service-connected disability was not a principal or contributory cause of the Veteran's death. 4. The Veteran's service-connected disabilities were not of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for cause of death is not warranted. See 38 U.S.C.A. §§ 101(24), 1101, 1131, 1310, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.312 (2012). 2. The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Sup. 2010); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant 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 claimant is expected to provide. VCAA letters dated in October 2009 and October 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The appellant was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claims. These letters indicated that additional information or evidence was needed to support these claims, and requested that the information or evidence be sent to VA. See Pelegrini II, at 120-121. In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the Court held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Id. The October 2010 letter informed the appellant what information and evidence was needed to support a claim for DIC based on the cause of the Veteran's death, including evidence that "shows a disability was incurred or aggravated during service and was the primary or contributory cause of death." However, this letter also indicated that service connection was not established for any disability during the Veteran's lifetime, which is incorrect. Regardless, Hupp does not mandate remand by the Board for every DIC claim; remand is only required where the notice provided was inadequate and not otherwise shown to be non-prejudicial. Cf. Medrano v. Nicholson, 21 Vet. App. 165, 170-71 (2007) (Board is not prohibited from evaluating for harmless error, however, the Court gives no deference to any such evaluation, which is subject to the Court's de novo review). Actual knowledge can also be established by statements or actions by the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). It is clear from the appellant's statements that she had actual knowledge that she needed to submit evidence to establish a link between the cause of the Veteran's death and his active duty. Moreover, the Veteran's service-connected disabilities were specifically listed and discussed at the April 2012 hearing. In light of the foregoing, the Board finds that any possible error with regard to Hupp notice was not prejudicial to the appellant. The Board, therefore, finds that VA has discharged its duty to notify. The appellant has demonstrated actual knowledge pertaining to all notice requirements in compliance with Hupp and has been afforded a meaningful opportunity to participate effectively in the processing of her claims. The appellant gave no indication at the hearing that she was not previously aware of the Veteran's service-connected disabilities, which were discussed at this hearing. Therefore, remanding the issue in order to afford additional notice in compliance with Hupp would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Since the Board has concluded that the preponderance of the evidence is against the claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the result of the RO's development indicates that the Veteran's service treatment records are not available. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's complete service treatment records. However, VA issued a Formal Finding on the Unavailability of Original Service Treatment Records in June 2009. A letter was issued to the Veteran notifying him of this finding. The claims file contains all other available evidence pertinent to the claims on appeal, including private and VA medical records. VA has requested records identified throughout the claims process. All records identified by the appellant and the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims, and VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). A VHA medical opinion was provided in January 2013 regarding the claim for service connection for cause of death and the claim for entitlement to TDIU. The examiner reviewed the claims files, discussed the pertinent evidence of record, and provided a rationale for her opinion. The Board finds this opinion is sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). 1. Entitlement to service connection for cause of death. The appellant is claiming entitlement to service connection for the cause of the Veteran's death. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In cases of service connection for the cause of death of the Veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the Veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2012). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). At the time of his death, the Veteran was service connected for PTSD, bilateral sensorineural hearing loss, and bilateral tinnitus. The Veteran's death certificate lists twelve different diseases that either caused or contributed to his death or were underlying diseases at the time of his death. These causes were cardiac, pulmonary, and renal in nature. The claims folder contains no medical evidence indicating that any other disability caused or contributed to the Veteran's death. Prior to his death, the Veteran indicated that he worked on trucks during service, which included working on asbestos brakes. The Veteran served in combat with the enemy, and the Board finds these statements credible. In 2009 and 2010, chest x-rays revealed interstitial lung disease. As such, the Board found it necessary in November 2012 to obtain a competent medical opinion as to whether interstitial lung disease is related to working on asbestos brakes during service and, if so, whether that caused or contributed to the cause of the Veteran's death. A medical opinion was also requested as to whether the Veteran's PTSD caused or aggravated any of the disabilities that led to his death. In January 2013, a VHA medical opinion was provided with regard to this matter. The physician indicated that she reviewed the Veteran's chart and noted his death in August 2010. The physician specifically noted an October 7, 2009, chest x-ray report. She stated that, while this chest x-ray report states "interstitial lung disease is noted", the Veteran's more detailed lung imaging is not suggestive of asbestosis or interstitial lung disease. She noted, for example, that a July 2010 CT scan showed interstitial and alveolar infiltrate in the posterior segment of the right upper lobe (consistent with pneumonia, not interstitial lung disease) and extensive centrilobular emphysematous changes in both lungs. She further noted that pulmonary functions tests in 2004 were consistent with chronic obstructive lung disease (COPD), not interstitial lung disease, and the Veteran was not given a diagnosis of interstitial lung disease or asbestosis during his lifetime and the imaging (CT scan is much more accurate than the chest x-ray report) does not suggest interstitial lung disease or asbestosis. The physician further noted that the Veteran had multiple medical problems, including advanced COPD requiring oxygen supplementation. He also had multiple episodes of pneumonia and was being treated for non-TB mycobacterial lung infection. He also had congestive heart failure and atrial fibrillation. The physician noted that, during 2010, he had frequent hospitalizations for exacerbation of respiratory symptoms. On August 20, 2010, he went into respiratory distress, became unresponsive, suffered cardiac arrest, and underwent cardiopulmonary resuscitation. He responded to CPR and was admitted to the intensive care unit at King's Daughters Medical Center. Imaging showed multilobar pneumonia and pleural effusions. His condition declined further despite medical therapy, and he succumbed to his illness on August [redacted], 2010. The physician noted that the death certificate stated the cause of death as "cardiopulmonary arrest" due to "pulseless electrical activity, ventricular tachycardia, atrial fibrillation, myocardial infarction" due to "hospital acquired pneumonia, mycobacterial avium complex, sepsis due to acute on chronic respiratory failure, chronic respiratory failure oxygen dependent"; contributing factors": acute on chronic renal failure" and "symptomatic bilateral pleural effusions." The physician concluded that, thus, PTSD, hearing loss, or tinnitus were not principal or contributory causes of death. These conditions were not a material influence in accelerating death. The physician stated that she found no evidence that any of his service-connected conditions contributed materially or significantly to his cause of death. She further concluded that the principal and contributory causes of death were cardiac, pulmonary, and renal conditions. There is no evidence that the Veteran's PTSD caused or aggravated these conditions. With regard to granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no medical evidence of record linking a cardiac, pulmonary, or renal disability of any kind to the Veteran's military service. Moreover, there is no medical evidence of record linking the Veteran's PTSD, bilateral sensorineural hearing loss, or bilateral tinnitus to his cause of death. The January 2013 VHA physician specifically determined that the Veteran's detailed lung imaging was not suggestive of asbestosis or interstitial lung disease. The physician further determined that there is no evidence that the Veteran's service-connected conditions contributed materially or significantly to his cause of death or that his PTSD caused or aggravated his cardiac, pulmonary, or renal conditions. As the VHA physician reviewed the claims file thoroughly and provided a detailed rationale for her opinion, the Board finds this opinion to be the most probative medical evidence of record on the matter. Therefore, as the most probative medical evidence of record on the matter does not relate the Veteran's cause of death to his service or to a service-connected disability, service connection cannot be granted for cause of the Veteran's death on a direct basis. The Board has carefully considered the statements offered by the appellant and the Veteran and notes that lay persons can attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, lay persons have not been shown to be competent to offer opinions on complex medical questions, such as diagnosing asbestosis or an asbestos-related disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, these lay assertions regarding etiology are far outweighed by the January 2013 VHA medical opinion provided by a physician who had full access to the Veteran's medical history and offered a detailed rationale for her opinions. Therefore, as the most probative evidence of record does not relate the Veteran's death, directly or indirectly, to his active duty service, the Board finds that service connection is not warranted for the Veteran's cause of death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). 2. Entitlement to TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, at the time of his death, the Veteran was service connected for PTSD (50 percent), bilateral sensorineural hearing loss (40 percent), and bilateral tinnitus (10 percent). As such, the Veteran's service-connected disabilities met the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). However, for the appellant to prevail on a claim for entitlement to TDIU, the evidence must show that the Veteran was precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. The Veteran asserted in a September 2009 statement that he had to leave his job due to his PTSD. At the April 2012 hearing, the representative argued that the Veteran's hearing difficulties and PTSD together would have rendered him unemployable. The appellant asserted at the April 2012 hearing that the Veteran's PTSD could have contributed to his heart conditions. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence does not reflect that the Veteran was precluded from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. The Veteran underwent a VA general medical examination in November 2009. The examiner stated that, to answer a question about employability based solely on service-connected conditions, the Veteran, due to hearing loss and tinnitus bilaterally, "would not be able to work where hearing and construction jobs and working at heights where instructions are to be heard to prevent injuries and danger and to properly do his job." It was further noted that, since hearing is severely decreased, he may not be able to hear instructions at any job. The examiner noted that PTSD would be addressed separately. The Veteran underwent a VA audiological examination in November 2009. Upon review of the claim and examination of the Veteran, the examiner determined that, based solely upon the Veteran's loss of hearing, he would still be considered to be employable. He would require binaural amplifications. However, even while aided, he would likely experience difficulty hearing clearly in many situations, such as in group settings, in background noise, distances greater than 10 feet, or if the speaker's face were not visible. He would also likely not hear some words in conversation over the telephone. The Veteran underwent a VA PTSD examination in November 2009. Upon review of the claims file and examination of the Veteran, the examiner determined that there was no evidence of total occupational impairment, and it was not assessed that this Veteran was unemployable due solely to the symptoms of PTSD, chronic, and associated depressive symptoms. While these opinions address the impact on employability of the Veteran's PTSD and bilateral hearing loss disability individually, they do not address whether the Veteran's service-connected disabilities, together, rendered him unable to obtain or maintain substantially gainful employment prior to his death. As such, in November 2012, the Board requested a VHA medical opinion on this matter. In the January 2013 VHA medical opinion, the physician noted that she reviewed the Veteran's chart and that he was service connected for PTSD, hearing loss, and tinnitus at the time of his death. The physician noted, that prior to his death, the Veteran worked as a janitor and "drove a truck with groceries". He retired in 1986 at approximately age 63. It was reported that the Veteran had taken sick leave because he was not well before finally retiring early. The VHA physician discussed the November 2009 VA audiological examination report and noted the examiner's determination that, based solely on the Veteran's loss hearing, he would still be considered employable. The VHA physician also noted a March 2010 home-based primary care interdisciplinary note indicating that the Veteran was wearing hearing aids bilaterally and doing well with them. With regard to the Veteran's PTSD, the VHA examiner considered the November 2009 VA examination report and opinion, which noted an "occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks due to PTSD" and ultimately assessed that the Veteran was not unemployable due solely to his PTSD symptoms. With regard to the Veteran's tinnitus, the VHA examiner noted that tinnitus is not a condition that would render the Veteran unemployable. The VHA examiner noted that none of the documentation from his frequent hospitalizations in 2010 suggest that the Veteran developed such profound hearing loss as to make the Veteran unemployable. No evidence of sufficient mood dysregulation as to cause unemployability was noted in any of these records. The examiner concluded by stating that the evidence does not show an increase in symptoms [after the above-noted examinations] for the Veteran's service-connected PTSD, hearing loss, or tinnitus, nor does it reflect unemployability due to the aforementioned conditions. The Board does not doubt that the Veteran's service-connected disabilities significantly impacted his employability. However, the weight of the evidence does not support the contention that his service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment. Specifically, while the November 2009 VA general examination report suggested that the Veteran's employability could have been affected with regard to certain jobs by his service-connected hearing loss, the November 2009 VA audiological examiner specifically determined that, based solely upon the Veteran's loss of hearing, he would still be considered to be employable. Further, the November 2009 VA PTSD examiner did not assess that this Veteran was unemployable due solely to the symptoms of PTSD, chronic, and associated depressive symptoms. Finally, the January 2013 VHA physician concluded that the evidence does not reflect unemployability due to the Veteran's PTSD, tinnitus, or hearing loss. While the Board has considered the Veteran's and the appellant's lay assertions, the Board ultimately places far more weight on the reports of these VA examinations, which are the result of thorough physical and mental evaluation by objective health care providers, and the opinion of the January 2013 VHA physician, who reviewed and discussed the pertinent evidence of record thoroughly. As noted, the results of these examinations, and the January 2013 VHA opinion, weigh heavily against finding that the Veteran was precluded from maintaining any form of substantially gainful employment due to his service-connected disabilities. In summary, the Board believes that the symptomatology associated with his service-connected disabilities, including the degree of occupational impairment present, was appropriately compensated via the ratings assigned to these disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2012). Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, the Board finds that the Veteran did not meet the criteria for entitlement to TDIU prior to his death. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for cause of death is denied. Entitlement to TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs