Citation Nr: 1400167 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 08-02 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By that rating action, the RO, in-part, denied the Veteran's claim of entitlement to TDIU. The Veteran appealed this rating action to the Board. In January 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's VA claims folder. In March 2010, the Board denied the Veteran's claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Order, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the Motion. In February 2012, the Board remanded the Veteran's claim to the RO for additional development. The Board once again denied the Veteran's claim in December 2012. The Veteran appealed the Board's denial to the Court. In a June 2013 Order, the Court granted a Joint Motion to Remand of the Parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the Motion. The appeal is once again before the Board. FINDINGS OF FACT The competent and credible evidence shows that the Veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU 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 FINDINGS AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits of the TDIU issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); C.F.R. § 3.159(b)(1). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a February 2007 preadjudication letter, the RO notified the Veteran of what evidence was required to substantiate his TDIU claim. This letter informed him of what evidence he was expected to provide and of what assistance the VA could provide him in obtaining this evidence. Specifically, the RO informed the Veteran that he needed evidence that showed that his service-connected disabilities by themselves rendered him unable to follow substantial gainful employment. The RO also advised the Veteran that the evidence needed to show that he had one service-connected disability rated at 60 percent or more or more than one disability ratable at 40 percent or more and a combined rating of 70 percent or more. He was further informed of how VA determines and assigns disability ratings and effective dates in accordance with Dingess. All notices were sent prior to the date of the last adjudication of the Veteran's claim in May 2007. This letter provided proper preadjudication notice under Pelegrini and Dingess. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §5103A; 38 C.F.R. § 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board observes that the RO has obtained private and VA treatment records and examination reports that are relevant to the TDIU claim. The Board has additionally reviewed the Veteran's Virtual VA claims file (VVA). Discussion of the Veteran's January 2010 BVA hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue of entitlement to a TDIU was identified as an issue at the hearing. Sources of evidence relevant in this regard were identified during this hearing. Indeed, as noted above, the Board remanded the Veteran's claim in February 2012 to afford the Veteran with VA examinations. The Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, the Veteran was afforded VA examinations in March and April 2012 to determine the effect, if any, that his service-connected disabilities have on his ability to follow substantially gainful employment. See VA general medical (March 2012), scar (March 2012), PTSD (April 2012) and hearing loss/tinnitus (April 2012) examination reports. The Board finds each examination report to be thorough and adequate to evaluate the Veteran's TDIU claim. Despite the Veteran's assertion in an October 2012 written statement to VA that the above-cited VA examinations were inadequate to evaluate his service-connected disabilities, the Board notes that each VA examiner elicited a history from the Veteran with respect to the disability being examined, physically examined the Veteran and provided an opinion as to the effect that each disability had on his ability to obtain and maintain substantially gainful employment. While the Veteran correctly noted in his October 2012 written argument to VA that the April 2012 VA audiologist provided a speculative opinion as to the etiology of the Veteran's bilateral hearing loss and tinnitus, the Board notes that the dispositive question on appeal is whether the Veteran's service-connected disabilities prohibit him from obtaining and maintaining substantially gainful employment, not the etiology of these conditions-a fact that has already been established. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). 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). II. TDIU The Veteran seeks entitlement to TDIU. A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26 (2013). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. While the regulations do not provide a definition of 'substantially gainful employment,' in Faust v. West, 13 Vet. App. 342 (2000), the Court defined 'substantially gainful employment' as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) (evaluated as 50 percent disabling); tinnitus (evaluated as 10 percent disabling); bilateral hearing loss (evaluated as noncompensable); and jungle rot of both hands (evaluated as noncompensable). His combined rating for his service-connected disabilities is 60 percent. Under, 38 C.F.R. § 4.16(a)(4) for the purposes of one 60 percent disability to meet the schedular requirements for TDIU, multiple injuries incurred in action are considered one disability. As such, because his PTSD and tinnitus disabilities are the result of injuries incurred in action (combat stressor and combat noise exposure), they meet the requirements of a single 60 percent disability. Therefore, he meets the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a) for consideration of TDIU. As previously stated, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to render him unable to sustain substantial employment. The question now presented is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Here, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected disabilities. The Veteran has asserted that he can no longer follow gainful employment due to his service-connected disabilities. When the Veteran initially filed a claim for TDIU benefits with VA, he indicated that he was unable to work because of his PTSD, bilateral wrist disorders and 'other problems.' See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in January 2007. On VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated and signed by the Veteran in February 2007, he related that he was unable to work because of his hearing, PTSD and jungle rot. He reported that he had last worked full-time in 2001 as an oil field worker for Dahl and Patrick Oil Company in Barnsoal, Oklahoma. He indicated that he had lost three (3) days of work from 'illness.' The Veteran indicated that he had left his job because of the above-cited disabilities. He reported that he did not expect to receive disability retirement or workers compensation benefits. The Veteran reported that he had two (2) years of a college education and that he had not received any additional education or training since he had become too disabled to work. On VA Form 21-4192, Request For Employment Information In Connection With a Claim for Disability Benefits, dated and signed by the Veteran's previous employer, Dahl and Patrick Oil Company, in February 2007, the Veteran's supervisor reported that the Veteran had been employed full-time as an oil pumper from March 10, 1980 to '12-7-21.' The Veteran's supervisor indicated that the Veteran was terminated because of his hearing, hands and because he could no longer get along with other people. The key question at issue in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities alone, without considering the impact any other nonservice-connected disabilities See 38 C.F.R. § 3.341. The Board has determined that the preponderance of the evidence of record that specifically addresses the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). There are several VA opinions of record that address this exact question and they are against the Veteran's claim. An October 2006 VA Fee basis examination report reflects that the Veteran was provided a psychiatric examination by a doctor of osteopathy (DO). After a review of the claims file, a recitation of the Veteran's psychiatric history, and a mental status evaluation of the Veteran, the examining DO concluded that the Veteran was unable to work because of his physical complaints including arthritis and carpal tunnel [syndrome]. The examining DO specifically opined that the Veteran did not have any difficulty understanding commands and that he did not appear to pose any threat of persistent danger or injury to himself or others. See October 2006 VA fee basis psychiatric examination report. Other evidence against the claim includes VA general medical, scar, PTSD, and hearing and tinnitus examination reports dated in March and April 2012. The Board notes that at each VA examination, the respective examiner elicited a history from the Veteran with respect to the disability being examined, physically examined the Veteran and provided an opinion as to the effect that each service-connected disability had on his ability to obtain and maintain substantially gainful employment. The same VA examiner conducted the Veteran's general medical and scar examinations, both of which were conducted in March 2012. During the general medical examination, the VA examiner noted that the Veteran had several non-service-connected disorders, such as hypertension, sleep apnea, peripheral neuropathy and prostate hypertrophy. When examined for his skin, the VA examiner listed the reasons, as reported by the Veteran in order of severity, as reasons why he was unable to continue with gainful employment: (i) asthma; (ii) allergy; (iii) knee pain; (iv) foot pain; and, (v) hand/wrist pain with a loss of gripping force with the hands. Notably, and as indicated by the VA physician in March 2012, the Veteran did not report his service-connected skin condition, hearing loss, tinnitus and/or PTSD as factors that prohibited his gainful employment. After a thorough evaluation of the Veteran's skin, the VA physician diagnosed the Veteran with jungle rot of the hands. He was also noted to have scars of the right upper extremity-extensor fingers. The scars were scattered superficially and consistent with machine shop workers' small punctures. Overall, the VA skin examiner concluded that there were no objective findings of any residual effects of the Veteran's alleged skin condition to support his claim that there was impairment of his body that was sufficient to render it impossible for the average person to follow a substantially gainful occupation. The VA physician concluded that the Veteran was less likely as not precluded from all gainful employment due to his skin conditions and is at least as likely as not capable of gainful employment due to the same. See VA scar examination report, dated in March 2012. In April 2012, a VA psychologist diagnosed the Veteran with PTSD that he determined did not preclude the Veteran from obtaining or maintaining employment. The VA psychologist noted that the Veteran reported that his 'physical health/pain' had prevented him from working. The examiner specifically indicated that the Veteran did not report having any mental health problems that prevented him from working. He reported having good family relationships and an ability to socialize appropriately with others. See April 2012 VA PTSD examination report. In April 2012, a VA audiologist examined the Veteran to determine the effect, if any, that his hearing loss and tinnitus had on his ability to maintain gainful employment. The Veteran stated that he had to ask people to repeat themselves several times, that he would mistakenly hear the wrong words and that he took aspirin to relieve his tinnitus. He reported that his hearing aids did not always help him. After an audiological examination of the Veteran and review of the claims files, the examining VA audiologist diagnosed the Veteran with bilateral sensorineural hearing loss. The VA audiologist concluded that assuming the validity of the Veteran's hearing test scores, that he would likely experience little to no difficulty in most vocational situations with the use of hearing aids. The clinician further expounded that even in environments with excessive amounts of background noise, the Veteran would be able to communicate with fellow employees with hearing aids that were properly fitted to his ears with only minor difficulty with communication. In vocational environments with little to no background noise, the VA audiologist concluded that the Veteran would likely experience no difficulty with communication. Overall, it was the VA clinician's opinion that it was more likely than not that the Veteran's hearing loss would have little to no effect on his employability. See April 2012 VA hearing loss and tinnitus examination report. While the April 2012 VA audiologist did not provide an opinion as to the effect, if any, that the Veteran's tinnitus had on his employability, the Board notes that the Veteran has been assigned the maximum 10 percent rating for this disability. See 38 C.F.R. § 4.86, Diagnostic Code 6100. The Board does not in any way disagree that the Veteran's service-connected disabilities, to include his tinnitus, have impacted his employability and are debilitating in many ways. The Board however believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the currently assigned 50 (PTSD), 10 (tinnitus) and noncompensable (jungle rot of the hands and bilateral hearing loss) ratings. The Board notes that the loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2013). 38 C.F.R. § 4.1 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]. The only evidence of record which ascribes the Veteran's claimed unemployability to his service-connected disabilities are his own statements and those provided by his previous employer. While the Veteran initially claimed that he was unemployable due to his PTSD, jungle rot and hearing loss on VA Form 21-8940 in February 2007, in a statement to VA that same month, he also listed a non-service-connected bilateral wrist condition as a cause of his unemployability. See VA Form 21-4138, Statement in Support of Claim, dated and signed by Veteran in January 2007. More importantly, and as indicated by the VA physician in March 2012, the Veteran did not report his service-connected skin conditions, hearing loss, tinnitus and/or PTSD as factors that prohibited his gainful employment, but listed a variety of non-service-connected conditions. Thus, the Veteran himself has attributed his current unemployability to non-service-connected conditions. The Board has also considered the Veteran's VA outpatient treatment records but finds that none of those records support a finding of permanent disability due to service-connected disabilities. Upon consideration of the foregoing, the Board finds the VA examinations of record to be more probative than the Veteran's subjective assertions of an inability to maintain gainful employment as a result of his service-connected disabilities. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's TDIU claim. There is no doubt to be otherwise resolved. The appeal is denied. ORDER Entitlement to TDIU is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs