Citation Nr: 1511819 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 98-00 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability resulting from service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Development actions since that rating decision have included development and adjudication of intertwined issues at both the RO and Board levels. These intertwined issues have since been resolved. The Board remanded the claim in August 2011, March 2012, September 2012, April 2013, and December 2013. The case now returns to the Board for further review. As the Board previously noted in the introduction to its December 2013 decision and remand, a written withdrawal of representation from a private law firm was received prior to certification of the TDIU issue to the Board. The Veteran remains unrepresented in his appeal. See 38 C.F.R. §§ 14.631 (c), 20.608 (a) (2014). The Board notes that in recent submissions directed at the present appeal, the Veteran persists in contending that he should be service connected for a central auditory processing disorder (CAPD) and that this plays a role in his work incapacity. However, the issue of entitlement to service connection for CAPD has already been adjudicated and denied by the Board in its December 2013 decision, and hence that issue of service connection is no longer on appeal for review by the Board. If the Veteran wishes to reopen the issue of entitlement to service connection for CAPD he may seek to do so at the RO level. In a December 2014 letter the Veteran also asserted that he had been assessed with an anxiety disorder. If he wishes to pursue a claim for service connection for an anxiety disorder he may do so at the RO level as well. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT For the entire rating period in question, bilateral hearing loss and tinnitus, the Veteran's sole service-connected disabilities, have not met the schedular criteria for TDIU, and no exceptional or unusual disability picture pertaining to the Veteran and bilateral hearing loss and tinnitus otherwise have supported the conclusion that his service-connected bilateral hearing loss and/or tinnitus were sufficient by themselves to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his experience, education, and occupational background. CONCLUSION OF LAW For the entire rating period in question, the criteria for TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16, 4.19 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice from VA must inform the veteran of any information and 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). By an August 2008 VCAA letter addressing the Veteran's claim for increased rating for bilateral hearing loss, the Veteran was afforded notice of relevant aspects of the VCAA. He was also afforded VCAA notice in the course of appeal, including notice of governing regulations and information and evidence required to support his TDIU claim, as well as relative duties and roles of the claimant and the VA in assisting in development of the claim. The Veteran has not alleged that he received inadequate VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008). All the law requires is that the duty to notify is satisfied and that the claimant is given the opportunity to submit information and evidence in support of the claim. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); 38 C.F.R. § 20.1102 (2014) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his appellate claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Veteran's TDIU claim was subsequently readjudicated by the RO, including most recently by a supplemental statement of the case (SSOC) in April 2014. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, VA treatment records, and indicated private records. The RO also appropriately sought SSA records and VA vocational rehabilitation records, and associated with the electronic claims files all records obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was duly notified of records sought and obtained. The Board remanded the case in August 2011, March 2012, September 2012, April 2013, and December 2013. These remands collectively required that indicated records be sought including VA vocational rehabilitation records, that intertwined issues be adjudicated, that VA examinations be conducted, and that the case be referred for TDIU consideration by the Director, Compensation and Pension Service, on an extraschedular basis. The RO or AMC achieved substantial compliance with the requirements of all the Board remands. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). VA's duty to assist the Veteran by providing examinations when necessary was also adequately fulfilled. 38 U.S.C.A. § 5103A. The Board finds that the VA examination afforded the Veteran in March 2000, December 2002, August 2006, September 2008, August 2010, November 2011, June 2012, and February 2014, and their findings and analysis, as discussed below, taken together with the balance of the evidence of record, inclusive of prior examinations and private audiometric records, are adequate for the Board's adjudication herein. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examinations provided sufficient detail, and supported their conclusion with sufficient analysis supported by review of the evidence presented, which analyses are readily weighed against contrary evidence. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Further, the evidence so considered by the most recent examiners including in February 2014, was sufficient and encompassed the evidence of record, addressing the Veteran's bilateral hearing loss and tinnitus and their impact on his capacity to obtain or retain substantially gainful employment. Thus, these examinations, taken together with records of prior VA examinations, VA and service treatment, as well as SSA and private examination and treatment records, and statements by the Veteran, as well as other evidence of record, adequately support the Board's adjudication. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board accordingly concludes that no further examination is required to support the Board's adjudication of the claim for TDIU. The Veteran has not indicated the existence of additional pertinent evidence. The Veteran has not asserted, and the evidence of record does not show, that there has been a material change in the Veteran's bilateral hearing loss and tinnitus since his most recent VA examination in February 2014. The case presents no reasonable possibility that additional evidentiary requests would further the appealed claim. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. Additionally, in May 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge (AVLJ). As a result of that hearing, the Board undertook additional evidentiary development. 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 claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). II. Evidentiary Considerations Relevantly, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although medical evidence may be required to support a claim in instances where specialized knowledge is required, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (a lay person is competent to testify to pain and visible flatness of the feet). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1372. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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(a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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 the veteran actually works and without regard to the Veteran's earned annual income. . . ." A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU 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 disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulation further provides that if there is only one such disability, it must be rated at 60 percent or more; and 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. In any event, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Service. In this case, the Veteran's bilateral hearing loss and tinnitus are the Veteran's sole service-connected disabilities. These disabilities either separately or in combination do not meet the criteria for consideration of TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for the entire rating period in question. The TDIU claim was referred twice to the Direct, Compensation and Pension Service, with determinations made in March 2000 and again in April 2014, that TDIU on an extraschedular basis was not warranted. Where there has been a review by the C&P Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet. App. 423 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). The Board thus here conducts its own review of the extraschedular TDIU question. In determining whether a claimant is unable to secure or follow a substantially gainful occupation, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a Veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The issue before the Board is solely one of entitlement to TDIU. During the pendency of the claim the Veteran has only been service connected for bilateral hearing loss, rated 10 percent disabling from November 29, 1996 (prior to the beginning of the claim period), 20 percent disabling from June 4, 2002, and 30 percent disabling from June 26, 2003; and tinnitus, rated 10 percent disabling for the entire claim period. The ratings for those disabilities are not the subject of appeal. The Veteran had also appealed a claim of entitlement to service connection for a central auditory processing disorder (CAPD), also claimed as associated with traumatic brain injury (TBI). However, the Board denied that claim in its April 2013 decision, and hence CAPD and any associated TBI may not be considered as supportive of the Veteran's TDIU claim, since no such disabilities are service connected. The Veteran has persisted in arguments to the effect that CAPD or TBI contribute to unemployability, but these arguments, dependent as they are on impairment due to disabilities which are not service connected, cannot support the TDIU claim. Because the Veteran's service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), the Veteran's TDIU may only be considered on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board accordingly referred the claim for extraschedular consideration, with the Director, Compensation Services, providing assessments in March 2000 and again in March 2014, that the Veteran's service-connected disabilities did not preclude him from obtaining or retaining substantially gainful employment, because while the Veteran's service-connected disabilities would "undoubtedly make certain employment situations more difficulty, they have not rendered him incapable of performing the physical and mental acts required by employment." This is consistent with the findings of the most recent VA audiology examiner in February 2014, who noted that the Veteran had significant hearing impairment which would be more impairing in noisy environments, his capacity to understand speech in a quiet environment remained relatively good in each ear. The February 2014 examiner noted that the Veteran's past work as a welder could not be expected to be continued due to danger of completing projects incorrectly in the work environments in which welding takes place. The hearing loss examiner concluded that the Veteran's hearing loss and tinnitus did impair his ability to concentrate and function in a work setting, including impairing his ability to understand speech in welding environments due to excess noise and absence of visual cues to understand speech in such settings. The examiner relevantly observed that the Veteran had no useable hearing above 2000 hertz, and this would be "devastating" for one trying to hear speech in noisy environments. This is consistent with the Veteran's report at that examination that he had tried a recent job but was let go after three days when his hearing test came back, being told that he was a liability with his hearing loss. However, as the Director, Compensation Service, noted, the Veteran has not worked exclusively in welding and is not restricted to performing work only in the welding field. Rather, the Veteran has performed past work in sales, construction, cement work, delivery, and inspection. He has also completed a year of college. Thus, while he has in the past primarily worked in welding, he has shown enough professional flexibility to not be precluded from pursuing other work which does not require effective communication in a noisy environment. Indeed, obtained VA vocational rehabilitation records showing that the Veteran pursued vocational training and an apprenticeship for a career as a plumber. Records obtained from the VA vocational rehabilitation office as well as from the company where he worked as a plumber's assistant as part of his vocational training, inform that the Veteran was at first doing well, but then was told by the employer in early 2002 that there was not enough work due to a slowdown in the local market. The Veteran reportedly stopped this vocational apprenticeship/training in February 2002, expressing a desire to no longer pursue it due to work being slow. Thus, it appears that the Veteran was not precluded from performing this work and training in the plumbing field by his service-connected disabilities, but rather that local market forces resulted in some loss of work prospects and the Veteran elected not to persevere in a difficult local market. This work training experience does not reflect incapacity to do other forms of work due to service-connected disabilities, but rather reflects an election on the part of the Veteran to not endure the difficulties which may arise in any professional field. A VA counseling psychologist arrived at the similar conclusion in a June 2001 evaluation, that the Veteran does not have a serious employment handicap. While acknowledging the Veteran's significant work-related limitations due to his bilateral hearing loss and tinnitus, the Board does not find exceptional or unusual circumstances related to his hearing loss, tinnitus, and past work experience, education, and work capacity as to lead to the conclusion that the Veteran's bilateral hearing loss and tinnitus preclude substantially gainful employment. Rather, the weight of the evidence, including vocational rehabilitation records and findings and conclusions of medical examiners and medical treatment professionals, is to the effect that the Veteran would be capable of other substantially gainful work and that such other work would not be precluded by his service-connected bilateral hearing loss and tinnitus. Plumbing work is but one example of work which would not be precluded. A variety of office and computer-related work not requiring verbal communication in noisy environments would be possible. Thus, the Board finds no exceptional or unusual circumstances particular to the Veteran and his past education, work experience, and service-connected disabilities, to support the conclusion that the Veteran is precluded from substantially gainful employment due to his service-connected hearing loss and tinnitus. Accordingly, the Board finds that TDIU on an extraschedular basis is not warranted, with the evidence preponderating against the claim. 38 C.F.R. § 4.16(b). The Board is thus in concurrence with the findings of the Director, Compensation Service, of no unemployability due to the Veteran's service-connected bilateral hearing loss and tinnitus. The Board has considered staged assignment of TDIU, but finds no intervals during which such preclusion from obtaining or retaining substantially gainful work is present due to these service-connected disabilities, by the preponderance of the evidence. Hence a staged-rating interval of TDIU is also not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to TDIU is denied. ____________________________________________ G. A. WASIK Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs