Citation Nr: 1808228 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 04-28 381A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected bilateral hearing loss. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 25, 2014, on an extra-schedular basis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1969 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held before the undersigned Veterans Law Judge in December 2013. A transcript of the hearing is of record. The Board notes that during the pendency of the appeal, in February 2016 the Veteran brought another TDIU claim, which was granted in a July 2016 rating decision. Indeed, VA granted the Veteran's claim for TDIU effective June 25, 2014, therefore, while the issue was certified to the Board, it is no longer on appeal for the period of June 25, 2014 and thereafter. However, the issue of TDIU prior to that date is still on appeal. The Board remanded the case for further development in May 2014 and February 2017. The case has returned to the Board for appellate review. FINDINGS OF FACT 1. Vertigo did not have onset during active service or within one year thereafter, was not caused by active service, and was not caused or aggravated by service-connected disability. 2. Prior to June 25, 2014, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1131, 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. Prior to June 25, 2014, the criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board initially notes that VA has procedural requirements pursuant to 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2016). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Vertigo The Veteran contends that his vertigo is related to his service-connected hearing loss. During the December 2013 Board hearing, he testified that he first experienced vertigo approximately 9 years prior and that he was told by a doctor that it was related to hearing loss. The Veteran has a current diagnosis of vertigo. The record reflects that the Veteran was exposed to hazardous noise during service and is currently service-connected for hearing problems stemming from bilateral hearing loss and tinnitus. The dispositive issue on appeal concerns whether there is a causal relationship between the Veteran's current vertigo disability and either service or a service-connected disability. The Veteran's service treatment records, as well as his December 1970 separation examination, are silent for any complaints, treatments, or manifestations of vertigo. Approximately 35 years after service, June 2005 VA audiology records stated the Veteran complained of occasional imbalance, but denied vertigo. VA treatment records indicate the Veteran first experienced a diagnosed episode of vertigo sometime in 2007. See VA treatment records, dated April 8 2008. Subsequent treatment records indicate the Veteran continues to experience infrequent dizzy spells and symptoms associated with vertigo. Following the February 2017 Board remand, the Veteran underwent VA audio examination in March 2017. The VA examiner conducted an in-person examination and reviewed the Veteran's claims file. The examiner noted there was no evidence showing the Veteran was treated for vertigo-related symptoms until many years after service. The examiner further found no evidence in medical literature to support a causal relationship between hearing loss and vertigo; specifically, the examiner cited the fact that each condition involves a separate end organ. The examiner also noted that improper fluid drainage in the inner ear is thought to contribute to vertigo. Given the foregoing, the examiner opined the Veteran's vertigo is less likely as not related to service or his service-connected disabilities, to include bilateral hearing loss. Given the March 2017 VA examiner's opinion, the Board finds that the preponderance of the evidence establishes that the Veteran's vertigo did not manifest within one year from service discharge, and is not causally or etiologically related to service or a service-connected disability. The only evidence capable of substantiating the claim consists of the Veteran's his own opinion as to a causal relationship between vertigo and his service-connected hearing disability. However, the Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship. The Board places greater probative weight on the VA medical opinion interpreting the entirety of the record. In sum, based on the totality of the evidence, with the preponderance of it being against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU The Veteran is also seeking entitlement to a TDIU on an extraschedular basis prior to June 25, 2014. The evidence of record shows that the Veteran last worked in August 1984 when he retired from the United States Air Force. In pertinent part, the Veteran submitted a June 2009 letter stating he was unable to work; in the letter, the Veteran cited the effects of melanoma and adrenal disease. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Prior to June 25, 2014, the Veteran was service-connected for diabetes mellitus, type II, evaluated as 20 percent disabling. The Veteran was also service-connected for bilateral hearing loss, evaluated as noncompensable from May 30, 2002 and increased to 20 percent disabling as of December 26, 2013; and tinnitus, evaluated as 10 percent disabling. The combined evaluation for compensation was 40 percent. Thus, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU. If a Veteran's disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Previously, the Board referred the matter of a TDIU on an extraschedular basis to the Director of the Compensation Service. In July 2017, the Director of Compensation Service determined that entitlement to TDIU on an extraschedular basis was not established prior to June 25, 2014. The Director observed that the Veteran was found to be permanently and totally disabled for pension purposes on August 29, 1989 due to nonservice-connected conditions of metastic melanoma and hypertension. The Director also observed that none of the available medical evidence shows that the Veteran's diabetes, bilateral hearing loss, or tinnitus impacted his ability to obtain and maintain gainful employment prior to June 25, 2014. The Director therefore concluded that a review of the available evidence in the claims file does not support a grant of TDIU prior to June 25, 2014. Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by an agency of original jurisdiction and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran was entitled to TDIU prior to June 25, 2014. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the April 2010 VA diabetes examiner found the Veteran had a diagnosis of diabetes, type II. In pertinent part, the examiner noted that the Veteran worked as a salesman until retiring in 2002 for medical reasons. The examiner further noted the specific medical cause of retirement was the Veteran's nonservice-connected condition of melanoma. The examiner considered the impact of diabetes and all diagnosed complications on the Veteran's functionality in his usual occupation, and found the condition did not have any effect on employment. Regarding hearing loss and tinnitus, VA audiology records and the Veteran's statements indicate the Veteran has reported having hearing problems for more than two decades. By way of background, an April 2008 private audiologist letter noted that repeat audiometry findings over the years showed the Veteran had gradually decreasing hearing. A May 2009 private otolaryngologist letter similarly noted the Veteran's hearing decreased over the years to the point where he had severe sensorineural hearing loss bilaterally with reduced discrimination scores, and required the Veteran to use hearing aids. Subsequent audiological records, dated through June 25, 2014, show the Veteran continued to experience symptoms of hearing loss and tinnitus. On VA audiology examination in November 2014, the VA examiner determined that the Veteran's hearing conditions had a significant effect on occupational activities. Nevertheless, the evidence prior to June 25, 2014 does not show that the Veteran's service-connected conditions resulted in functional impairment severe enough to preclude him from obtaining or maintaining gainful employment. Rather, the Veteran primarily claimed in his initial June 2009 statement concerning TDIU that he was unable to work due to diagnoses of melanoma and adrenal disease. The April 2010 VA examiner determined there was no evidence indicated the Veteran's service-connected diabetes, or any associated complications, would impair his ability to work. The first medical evidence showing that the Veteran's service-connected hearing conditions had a significant effect on occupational activities was dated in November 2014, after the date of grant for schedular TDIU. Further, given the Veteran's work experience as a salesman and high school education, it is reasonable to assume that he would have been qualified for sedentary or desk employment. Based on the evidence of record, the Board finds that the Veteran was not unemployable due to his service-connected disabilities prior to June 25, 2014. The evidence does not show nor does the Veteran claim that he was unemployable due to his service-connected diabetes, hearing loss, and tinnitus. As noted above, the schedular criteria for a TDIU are not met and the Director of Compensation Service found that entitlement to a TDIU was not warranted. See 38 C.F.R. § 4.16(a) and (b). The Board acknowledges that the Veteran has reported being unemployed and unable to work due to medical conditions; however, the functional impacts of the Veteran's service-connected conditions did not preclude him from employment prior to June 25, 2014. In sum, while the evidence documented limitations that impacted the Veteran's ability to work, there is no competent medical evidence to support the finding that the Veteran's functional impairments due to his service-connected conditions precluded his ability to work prior to June 25, 2014. Importantly, the medical evidence addressing this matter weighs against the claim. Furthermore, to the extent that the Veteran has attempted to establish entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that the Veteran has not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Rather, while the Veteran is competent to report symptoms from his service-connected disabilities, he is not competent to offer an opinion regarding the functional impact such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical evidence. In sum, the competent medical evidence offering detailed specific specialized determinations on the Veteran's functional impairment are the most probative evidence; the medical evidence also largely contemplates the lay assertions concerning his employment and descriptions of symptoms. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to June 25, 2014. In conclusion, the preponderance of the evidence is against entitlement to a TDIU prior to June 25, 2014 on an extraschedular basis. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for vertigo is denied. Entitlement to TDIU on an extraschedular basis prior to June 25, 2014 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs