Citation Nr: 1604034	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  12-17 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Entitlement to service connection for hearing loss.

2. Entitlement to service connection for tinnitus. 

3. Entitlement to a rating in excess of 30 percent for chronic obstructive pulmonary disease (COPD).

4. Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Non-Commissioned Officers Assoc.


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1952 to February 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  The Veteran testified before the undersigned in a November 2015 hearing.  A hearing transcript was associated with the claims file and reviewed.  The claim for TDIU is inferred with the claim for an increased rating and evidence that the Veteran is unemployed.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

The issues of service connection for hearing loss and tinnitus and an increased rating for COPD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran's combined disability rating is 80 percent.  His service-connected disabilities render him unable to secure and follow a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board grants TDIU and remands the outstanding appeals, the Veteran could not be prejudiced by the decision, and discussion of compliance with the Veterans' Claims Assistance Act is not necessary.

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Generally, to be eligible for TDIU, a percentage threshold must be met.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

In this case, the Veteran is service-connected for PTSD and COPD.  His combined rating is 80 percent disabling.  See 38 C.F.R. § 4.25.  Therefore, he meets the threshold requirements for TDIU.  See 38 C.F.R. § 4.16(a).  

In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as 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 he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).

The criteria for compensation based on TDIU have been met.  See 38 C.F.R. § 4.16.  The Veteran has a GED and attended some college courses but did not graduate.  See April 2011 examination, August 2012 private evaluation.  He worked as a welder in service, as a firefighter for over 20 years, and as a self-employed handyman for 16 years.  See id.  In his application for TDIU, the Veteran indicated that he continued to work part-time and stopped all work in 2001.  The Veteran's work history and education qualify him generally for labor work.

At the Board hearing, the Veteran testified that he retired early because of breathing problems.  He reported to the May 2012 examiner that he could not do prolonged labor-intensive activities due to shortness of breath.  The May 2013 examiner found that his COPD impacted his ability to work in that he was unable to do strenuous activities but could do sedentary work.  An August 2014 VA examiner opined that the Veteran's PTSD symptoms caused significant impairment to his occupational and social functioning and he is likely to have difficulty finding and maintaining gainful employment.  The April 2011 mental health examiner wrote that the Veteran did not exhibit any psychiatric symptoms that would impact his capacity for employment.  Finally, a private psychologist opined that the Veteran impresses as being unemployable due to the number and severity of his reported symptoms.  See April 2014 letter.  The Board finds all medical opinions adequate and that the positive opinions in favor of unemployability outweigh the opinion against.  Based on education and work history, it is unlikely the Veteran is qualified for work that would not involve physical labor or interaction with other people.  As such, the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  See 38 C.F.R. §§ 4.3, 4.16.    


ORDER

Compensation based on TDIU is granted.


REMAND

Additional development is needed for the Veteran's COPD claim.  At the hearing, the Veteran reported his COPD symptoms had worsened.  The record shows the following pulmonary function testing, which also suggest a possible worsening: 


FEV-1
FEV1/FCV
DLCO
2010/03/06
65%


2010/03/31
64.2%


2010/04/20
64.2%
51%
57.3%
2010/09/02
66%
73%
43%
2012/04/16
62.69%
63.64%
55.73%
2012/05/21
64.9%
42%
44.3%
2013/05/21
64.3%
41%
43.3%
2015/12/01
55%
64%


His last VA examination was in 2012.  A new examination would help determine his current level of disability.  See Bolton v. Brown, 8 Vet. App. 185, 191 (1995).  

Regarding the hearing loss and tinnitus claims, the Veteran appealed the denial of service connection in a June 2014 notice of disagreement.  The AOJ has not issued a statement of the case (SOC) on those issues.  As such, the Board has no discretion, and the issues of service connection for hearing loss and tinnitus must be remanded for such a purpose.  Manlincon v. West, 12 Vet. App. 238, 240 (1999).

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records.

2. Then, schedule the Veteran for an examination for his COPD with a pulmonary specialist if possible.  The examiner should measure and record the current level of disability and symptoms, including pulmonary function.  

a. Identify which pulmonary function test most accurately reflects the Veteran's disability level and explain why.  Please also review the pulmonary function test results from March 2010, April 2010, September 2010, April 2012, May 2012, May 2013, and December 2015 and discuss the possible reasons for discrepancies between the FEV-1, FEV-1/FVC, and DLCO readings.  

If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

3. If any benefit sought on appeal remains denied issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

4. Readjudicate the appeal on the issues of service connection for hearing loss and tinnitus and issue an SOC.  All evidence of record should be considered.  See 38 C.F.R. §§ 19.29-19.30; see also Manlincon, 12 Vet. App. at 240.  Further, advise the Veteran that a substantive appeal has not been received concerning these issues, and of the requirements for submitting an adequate and timely substantive appeal, as provided in 38 C.F.R. §§ 20.200, 20.202, and 20.302(b).

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs