Citation Nr: 1414967 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 13-17 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to July 1954. This appeal was previously remanded in September 2013 for additional development. It has now been returned to the Board. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note 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). As the Board noted in September 2013, the issue of entitlement to service connection for a sleep disorder claimed as secondary to service-connected tinnitus has been raised by the record (see August 2013 Informal Hearing Presentation); however, this issue has again 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. FINDINGS OF FACT 1. The Veteran is service-connected for bilateral hearing loss at 0 percent and for tinnitus at 10 percent. His combined rating is 10 percent. 2. The service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks a TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The Veteran is service-connected for bilateral hearing loss at a noncompensable rating and tinnitus at 10 percent, for a combined rating of 10 percent. Thus, the threshold requirements for the award of a TDIU under 38 C.F.R. § 4.16(a) not are met. Nevertheless, where the schedular percentage requirements for a TDIU have not been met, an extraschedular rating may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Consideration is given to the service-connected disabilities, employment history, educational and vocation attainments, and any other applicable factor. 38 C.F.R. § 4.16(b). Considering the pertinent evidence in light of the above, the Board finds that a TDIU on an extraschedular basis is not warranted. Notably, the evidence does not indicate that the Veteran is unemployable due to tinnitus and bilateral hearing loss. In a January 2014 VA examination, the audiologist stated that the Veteran's tinnitus "had no functional impact on employment." Regarding hearing loss, the examiner stated that the Veteran should be able to maintain employment with the use of hearing aids. This opinion was rendered based both upon objective physical examination and review of the medical history. Further, in an October 2012 VA examination, the examiner noted that the Veteran's hearing loss and tinnitus required him to turn up the volume on the TV and phone and occasionally interfered with his sleep. The examiner did not, however, find that these disabilities precluded employment. Aside from his own contentions, the Veteran has not presented any evidence of unemployability due to his service-connected disabilities alone. A June 2009 statement from his private physician confirmed tinnitus and stated that no treatment existed which would eliminate tinnitus; however, this examiner offered no opinion regarding the effect of tinnitus on the Veteran's employability. Regarding the Veteran's own lay assertions, the Board finds them both competent and credible, as a lay person may testify regarding such observable symptomatology as ringing in the ears or decline in hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, these lay assertions are outweighed by the remainder of the lay and medical record, which establishes that the Veteran's tinnitus and hearing loss do not render him unemployable. Indeed, he has submitted a copy of a February 1988 certificate issued by the Department of the Navy thanking him for 30 years of federal service. This evidence establishes that he was previously employed for many years, and does not indicate he is no longer employable. After a review of the entire record, the Board finds that the weight of the evidence is against the claim for a TDIU. Although the service-connected bilateral hearing loss and tinnitus may present difficulties in an occupational environment, the disabilities are not to the degree that prevents the Veteran from obtaining and maintaining substantially gainful employment. Therefore, the Board finds that the criteria for a TDIU are not met. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Here, the Veteran was afforded appropriate initial notice in April 2012, with additional notice provided in May 2012 and January 2014. These letters fully addressed all notice elements. Also, initial notice was sent prior to the initial RO decision in this matter. These letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, as well as with notice of what type of information and evidence was needed to establish disability ratings and the type of evidence necessary to establish an effective date. In April 2012 and February 2014, the Veteran submitted signed statements indicating he had no additional evidence to submit regarding his claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the RO obtained and associated the Veteran's private and VA treatment records with the claims file. Additionally, he was provided VA medical examinations in October 2012 and January 2014. These examination reports and medical treatment records contain adequate clinical findings and fulfill VA's duty to properly development the evidentiary record such that additional development is not necessary. The Board also observes that the Veteran is in receipt of Social Security benefits. The award of such benefits, however, appears to be based on age and not physical disability; thus, remand for any medical records associated with his receipt of Social Security benefits is not necessary and would only further delay this appeal. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained or attempted to be obtained. 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). ORDER A TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs