Citation Nr: 1806750	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  15-32 677	)	DATE  
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Thompson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1956 to April 1959, from July 1959 to April 1971, and from April 1971 to May 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2014 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  

By way of background, in December 2017 the Board issued a decision that remanded the issues of entitlement to a rating in excess of 30 percent for bilateral hearing loss and TDIU for issuance of a statement of the case (SOC).  For reasons discussed below, the Board's December 15, 2017 decision is vacated.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  On December 15, 2017, the Board issued a decision that construed the Veteran's September 2017 statement as a notice of disagreement and remanded the claim for further development.  

2.  The Veteran's September 2017 statement was not filed on the proper form and cannot be considered a notice of disagreement.  

3.  The Veteran's service-connected disabilities (bilateral hearing loss and tinnitus) result in a combined 40 percent rating.

4.  The evidence of record weighs against a finding that the Veteran is unemployable due to service-connected disabilities.


CONCLUSIONS OF LAW

1.  A vacatur of the December 15, 2017 Board decision is warranted.  38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017)

2.  The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340 , 3.341, 4.16.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In the present case, required notice was provided in letters dated January 2013 and April 2013.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records and VA medical records have been obtained, as have relevant private medical records identified by the Veteran.

The Veteran was provided a VA audiological examination in March 2013 that addressed the functional impact of his bilateral hearing loss and tinnitus disabilities.  The Board finds that the examination and the associated reports are adequate to address whether referral of TDIU on an extra-schedular basis. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim.  The examination reports were based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).

Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Vacatur of a Prior Board Decision

The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.904.

In the December 2017 Board decision, the Board construed the Veteran's September 2017 statement as a notice of disagreement (NOD).  Unfortunately, the statement did not conform to the requirements of 38 C.F.R. § 19.24.  Effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the Agency of Original Jurisdiction (AOJ) as a notice of disagreement (NOD) only if it is submitted on a standard form, in cases where such a form is provided.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 19.23, 19.24, 20.201(a)).  For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, an NOD consists of a completed and timely submitted copy of that form.  VA will not accept as an NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form.  See 38 C.F.R. § 20.201(a).

The RO provided the Veteran with the standard NOD form in the notification letters for the August 2017 rating decision granting service connection for bilateral hearing loss.  Therefore, the submission requirement in 38 C.F.R. § 20.201(a) applies in this case.  As the Veteran's statement does not meet the requirements of 38 C.F.R. § 19.24, it cannot be considered a NOD.  Accordingly, the Board's December 2017 decision construing the statement as a NOD and remanding the issues of an increased initial rating for bilateral hearing loss and TDIU must be vacated.  

In accordance with 38 C.F.R. § 20.302(a), the Veteran must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination.  Here, the RO issued a rating decision in August 2017 that granted service connection for bilateral hearing loss and assigned a 30 percent evaluation.  On August 2, 2017, the RO sent the Veteran a letter notifying him of the August 2017 rating decision and advising him that he had one year from the date of the notification letter to appeal the decision.  Therefore, the Veteran has until August 2, 2018 to with a proper NOD.  See 38 C.F.R. §§ 19.24, 20.302(a).  

III.  TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such 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(a).  

In this case, the Veteran is service-connected for bilateral hearing loss, evaluated as 30 percent disabling; and tinnitus, evaluated as 10 percent disabling.  His combined rating is 40 percent.  38 C.F.R. § 4.25.  Therefore, he does not meet the criteria for a schedular TDIU.

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his or her employment and educational history.  38 C.F.R. §4.16(b).

The central inquiry is determining whether a TDIU is warranted 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).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In a June 2014 statement, the Veteran stated that for the past 25 years he has been mostly unemployed, underemployed and has little social interaction because of his disabilities, including bilateral hearing loss and tinnitus.  The Veteran's spouse stated in June 2014 that she believed the Veteran's hearing loss impacted his employment in that the Veteran was minimally employed due to his inability to hear well and follow instructions.  In his September 2017 VA Form 21-8940, the Veteran did not report his level of education and indicated that he had not had any education and training before or after he became too disabled to work.  

With respect to functional impairment, a March 2013 VA audiological examination found that the Veteran experienced difficulty understanding speech when not facing the speaker or in the presence of background noise.  

While the Board does not doubt that the Veteran's service-connected disabilities had some effect on his employability, the weight of the evidence does not support the contention that his service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment.  Based on the evidence in the claims file, the Board finds that the symptomatology associated with the service-connected disabilities was appropriately compensated via the combined 40 percent rating which was assigned.  Considering the VA examination of record and the discussion of symptomology contained therein and the lay statements of record, the Board finds the evidence weighs against a finding that the service-connected disabilities prevent substantially gainful employment.  Thus, the Board finds that the evidence of record does not indicate that additional development of the claim of TDIU, to include referral on an extraschedular basis, is warranted.  See 38 C.F.R. § 4.16(b).  For this reason, this claim is denied.


ORDER

The Board's December 15, 2017 decision is vacated.  

Entitlement to a TDIU is denied.  



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs