Citation Nr: 1410198 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 12-00 105 ) 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 (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The October 2010 rating decision, in pertinent part, denied entitlement to a TDIU. In November 2010, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in December 2011, and the Veteran filed a Substantive Appeal (VA Form 9) later in December 2011. The Veteran originally also appealed the issues of entitlement to service connection for a bilateral foot disability and for diabetes mellitus type II, and entitlement to an increased rating for bilateral hearing loss. An October 2009 rating decision granted service connection for diabetes mellitus type II. That represents a total grant of the benefits sought on appeal for the issue of entitlement to service connection for diabetes mellitus type II, and therefore, that issue is no longer before the Board. Regarding the issues of service connection for a bilateral foot disability and increased rating for bilateral hearing loss, the Veteran withdrew his appeal regarding these claims in December 2011, and therefore these issues are also no longer before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic record associated with the Veteran's claim (including Virtual VA and Veterans Benefits Management System (VBMS)). A review of the documents in such record reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In the May 2013 Informal Hearing Presentation, the Veteran's representative noted that despite the November 2011 VA examiner's finding that the Veteran's deep vein thrombosis (DVT) of the right lower extremity was aggravated by his service-connected diabetes mellitus type II, the RO had not granted or even adjudicated this issue. In addition to claiming service connection for DVT of the right lower extremity as secondary to service-connected diabetes mellitus type II, the Veteran was also alleging service connection for antalgic gait as secondary to service-connected peripheral neuropathy of the right lower extremity, service connection for ischemic heart disease as secondary to Agent Orange exposure and service-connected diabetes mellitus type II, and service connection for post-phlebitic syndrome with chronic edema as secondary to DVT and service-connected diabetes mellitus type II. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected bilateral hearing loss, diabetes mellitus type II, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, tinnitus, and erectile dysfunction combine to a 70 percent rating as of February 22, 2010, and combine to an 80 percent rating as of November 22, 2011. 2. The Veteran has work experience as a truck driver; he has a high school education. 3. The weight of the competent and probative evidence indicates that the Veteran as likely as not is prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2013). In light of the fully favorable determination to grant a TDIU, no further discussion of VCAA compliance is necessary regarding this issue. Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more 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 (2013). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2013). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, neither the veteran's nonservice-connected disabilities nor advancing age may be considered. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is currently service-connected for bilateral hearing loss (60 percent); diabetes mellitus type II (10 percent prior to June 30, 2011 and 20 percent thereafter); peripheral neuropathy of the right lower extremity (20 percent since November 22, 2011); peripheral neuropathy of the left lower extremity (10 percent since November 22, 2011); tinnitus (10 percent); and erectile dysfunction (0 percent since November 22, 2011). Combined, these disabilities have been ratable at 70 percent since February 22, 2010, and at 80 percent since November 22, 2011. See 38 C.F.R. §§ 4.25; 4.26 (2013). Thus, the threshold disability percentage requirement for a TDIU under section 4.16(a) is met. The Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, shows that he has a high school education. Regarding his work history, he has had work experience as a truck driver. VA audiological examinations dated in March 2009 and February 2010 show that the Veteran's hearing loss had significant occupational effects. The examiners found that the Veteran would be unable to hear or understand conversation despite a quiet environment due to his nearly profound loss of hearing to high frequency (consonant) sounds. In a November 2010 medical report, after a thorough examination, the Veteran's private audiologist diagnosed the Veteran with moderate to profound sensorineural hearing loss in both ears and found that speech understanding was poor in both ears. She opined that the Veteran's hearing loss would have a significant negative impact on his communication ability in most situations and would therefore render him unemployable. She indicated that the Veteran should avoid working in any situation where there was noise which would exacerbate his hearing loss. She also explained that the Veteran's hearing loss would pose a significant safety risk in any job setting that involved transportation/driving or being around heavy or moving machinery. The audiologist concluded that the Veteran's hearing loss would significantly impair his employability in most job assignments with or without adaptation. On VA genitourinary examination in November 2011, the Veteran was diagnosed with erectile dysfunction. After examination, the VA examiner determined that the Veteran's erectile dysfunction did not impact his ability to work. At a November 2011 VA diabetes mellitus examination, the Veteran reported that he had been advised to exercise for improved management of his diabetes mellitus. He complained that the swelling and paresthesias in his right lower extremity and his dyspnea limited his ability to walk. He stated that he had chairs placed around his trailer and that he would "walk a ways and then sit down and rest and then walk to the next chair." After examination, the VA examiner diagnosed the Veteran with diabetes mellitus type II and found that, in pertinent part, the Veteran had diabetic peripheral neuropathy as well. The examiner found that in general, the occupational effects of the diabetes mellitus type II required that the Veteran have a regular work shift with regularly scheduled meal and rest breaks. The examiner also determined that the diabetic peripheral neuropathy impacted the Veteran's ability to work because he needed to wear protective and supportive diabetic footwear at all times to avoid trauma to the bilateral feet. The Veteran also needed to have infrequent use of foot controls, particularly on the right side. On VA audiological examination in November 2011, the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. After examination, the examiner found that the tinnitus impacted the Veteran's ability to work because, in the Veteran's own words, it was "very bothersome and affects ability to hear." Regarding the impact of the hearing loss on the Veteran's ability to work, the examiner noted that it was very difficult for the Veteran to understand speech and that he could not understand speech in most situations. She explained that this would affect employment in any situation where he had to communicate with the public. She also reported that in an employment situation where he had to take instruction from a supervisor, it was likely he would misunderstand oral communication and would need to have instructions written down. However, the examiner opined that the Veteran's hearing loss alone would not prevent employment in a loosely supervised situation where accommodations were made in accordance with the Americans with Disabilities Act (ADA). The Veteran has worked primarily in a manual labor occupation that involved driving. Essentially, the medical evidence indicates that the Veteran cannot engage in labor intensive work such as the work he had performed since discharge from service. Currently, his service-connected hearing loss and tinnitus constitute a significant safety risk in any jobs involving transportation/driving or heavy or moving machinery. The Veteran must also avoid working in any situation where there will be noise which would exacerbate his hearing loss. Additionally, the Veteran's peripheral neuropathy of the bilateral lower extremities required that he have infrequent use of foot controls, particularly on the right side. The physical findings suggest that any work that involved driving, handling heavy or moving machinery, or prolonged use or weightbearing of the feet would not be feasible. Given these physical constraints, it would be difficult for the Veteran to engage in manual labor or to drive a vehicle. The Board acknowledges that the November 2011 VA examiner has opined that the Veteran's hearing loss alone would not prevent him from being employed in a loosely supervised situation with ADA accommodations. However, given the Veteran's educational background and work history, there is no evidence that he has any computer training or data entry skills that would be required in a sedentary desk job. Moreover, because the Veteran's hearing loss and tinnitus prevent him from understanding speech in most situations, he would not be able to work in any type of sedentary job that required customer contact. Additionally, the November 2011 VA examiner determined that the Veteran likely would misunderstand oral communication and would need to have instructions written down. This is not a practical limitation for someone engaged in substantially gainful employment. Thus, given the Veteran's educational and occupational history and the constraints noted above, the weight of the competent, probative evidence indicates that the Veteran as likely as not has been prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. In summary, the Veteran has met the criteria for a TDIU, and the Board finds the Veteran's service-connected disabilities, considered together, render him unemployable. Accordingly, entitlement to a TDIU is granted. ORDER Entitlement to a TDIU is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs