Citation Nr: 1761177
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 13-03 883 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Entitlement to a total 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

Joseph Montanye, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1977 to April 1983.

This matter has come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) St. Louis, Missouri that, in pertinent part, denied entitlement to a TDIU.

In a March 2015 decision, the Board denied the Veteran’s TDIU claim. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Court issued an order granting a November 2015 Joint Motion for Remand (JMR). The Board has remanded this matter in February 2016 and April 2017 for further development related to obtaining employment records and his hearing loss examination. The Veteran’s former employer was again contacted. Attempts to obtain the Veterans employment information were documented in his file and reasons why the AOJ was unable to obtain any additional information were also noted, along with instructions on obtaining his records being provided to the Veteran and his representative. An addendum opinion regarding the Veteran’s hearing loss, and its impact on his ability to work, was also obtained. The Board is therefore satisfied that the instructions in its previous remands have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This issue has subsequently been returned to the Board.

FINDING OF FACT

The Veteran’ service connected disabilities do not prevent him from obtaining and retaining gainful employment for which he would otherwise be qualified.

CONCLUSION OF LAW

The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA.

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran’s claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran’s behalf, and the evidence the Veteran is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran’s service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA initially issued a notice letter in October 2010, prior to the unfavorable adjudication in May 2011. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA met its duty to notify.

The “duty to assist” contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2017). As instructed by the Court, the VA again contacted the Veteran’s former employer and requested his employment information. There is a fee associated with this information. It is prescribed by law that “VA will not pay any fees charged by a custodian to provide records requested”. 38 C.F.R. § 3.159(c) (2017). The Veteran was informed in a letter dated May 26, 2017 that VA is unable to pay any fees charged by a custodian of private records, and the Veteran could submit these records. Such records have not been associated with the claims file. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C. § 5103A (2012) and 38 C.F.R. § 3.159(c) (2017). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was provided with an addendum opinion from September 2016. This opinion was adequate because the examiner considered and addressed the Veteran’s contentions, reviewed the claims file, and provided sufficient supporting rationale for the opinion. Based on the foregoing, the Board finds the examination reports and opinions to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran’s claim for entitlement to a total disability rating due to individual unemployability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, having provided adequate medical examinations and opinions, and obtained all relevant identified records, the Board finds that VA’s duty to assist in this case is satisfied.

II. Analysis.

TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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).

The Veteran is service-connected for asthma, evaluated at 60 percent, and right ear hearing loss and appendectomy scar, each evaluated as noncompensable. As such, the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a) have been met.

The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is “whether the [V]eteran’s service connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363

The Veteran’s service connected disabilities consist of asthma, evaluated as 60 percent disabling since April 21, 2009; and right ear hearing loss and an appendectomy scar, each evaluated as noncompensable since May 20, 1992.

The Veteran underwent VA hospitalizations from March 27 to April 4, 2009 and August 2 to August 5, 2009 for exacerbations of his respiratory disability.

At a VA examination in June 2009, the Veteran reported that nebulizer treatment caused difficulties in performing his employment with a security company.

In his September 2010 TDIU claim, the Veteran reported that he was currently employed earning $1,000 per month and had earned $12,000 in the last year. These earnings would indicate gainful employment because they exceeded the poverty level for a single person and were not marginal. See 38 C.F.R. § 4.16; United States Census Bureau, Poverty Thresholds, available at http://www.census.gov/hhes/www/poverty/data/threshld/index.html

He did not report any further details regarding this employment. Elsewhere on the same form he reported that he had left his last job due to disability but did not expect to receive disability benefits.

He did report employment experience as a driver, security officer, and bus driver; and indicated that he had completed college.

Two of the Veteran’s employers submitted information pertaining to employment from June 2002, to October 2008.

The Veteran was afforded VA examinations in March 2011 to assess his employability. The audiological examiner stated that, with proper amplification and assistive listening devices, hearing impairment alone (of any degree) would not render an individual unemployable. The examiner stated that “hearing loss found on today’s audiogram does not preclude gainful employment.”

The respiratory examiner indicated that the Veteran’s asthma disability had no effects on usual occupation and resulting work problems. He opined that “[i]t is not as least as likely as not that the Veteran’s capacity for sedentary employment is affected by his asthma.” He indicated that the Veteran was forthcoming in his report of his asthma symptoms, stating that they were fairly well controlled when he uses his nebulizer/inhaler treatments.

He described the Veteran as retired. His asthma was found to have stayed the same over the last few years and the reason he left his previous job as a security officer in October 2010 was not secondary to asthma, but rather due to back pain. The examiner concluded that asthma prevented the Veteran from performing strenuous physical employment; but would not affect light physical and sedentary employment. An example of this would be as a truck driver.

Despite the Veteran’s assertion that he could not find employment due to his service connected asthma, the record shows that he was able to find employment during periods when the disability was at its current level or somewhat worse (as shown by the periods of hospitalization while employed).

The VA examiner provided an opinion based on an accurate record and supported by a rationale. That opinion was to the effect that the Veteran would be able to engage in light or sedentary employment. The Veteran’s college education and experience as a driver and security officer would qualify him for such employment.

A follow up addendum opinion related to the Veteran’s hearing loss was required by the Court and provided by a VA examiner in September 2016. In the addendum opinion, the audiologist provided a full description of the effects of the Appellant’s service connected hearing loss on his ordinary activity, and offered her professional opinion on how his hearing loss affected his ability to work.

When asked to identify what functional effects the Veteran experiences as a result of his service-connected hearing loss, the examiner explained that “Symptoms of hearing loss include trouble understanding phone conversations, trouble hearing above background noise, trouble following a conversation when more than one person speaks at once, perception that people are not speaking clearly or mumbling, often misunderstanding what people say and responding inappropriately, often having to ask people to repeat themselves. Hearing loss is an individual experience, and how the individual copes will depend on many factors including onset, the progressive nature of the loss, the severity of the loss, communication demands, and personality”. The examiner further noted that the Veteran was called on September 28, 2016 to discuss the impact of his hearing loss and did not have any difficulty understanding the examiner over the telephone. The Veteran had originally reported that he worked as a security guard and truck driver post military service. His employment history was confirmed during the 2011 compensation and pension examination where the veteran reported working as a security guard for 27 years, a painter, and a general laborer post military. The examiner concluded with “it is the opinion of the examiner that the veteran’s hearing loss has not and should not preclude gainful employment when wearing appropriately fit amplification”. The Veteran’s hearing loss had not impacted his ability to work previously and it has not increased in severity during the period on appeal.

By his own statement, the termination of his previous employment was due to back pain, not his asthma condition or mild hearing loss. The Veteran is not service-connected for a back disability. And, while the Veteran did report in his June 2009 examination that he had to work odd hours due to his nebulizer treatments and that he had difficulty breathing climbing stairs and running, there is no indication that his employment was terminated by this and he remained gainfully employed until the effects of his back disability caused him to cease employment.

The Veteran did not originally contend that his other service connected disabilities have played any role in his unemployment. The evidence shows that they have been noncompensable throughout the appeal period; that an examiner has specifically opined that the hearing loss would not affect employment; and no symptoms of the appendectomy scar have ever been reported. The recently included addendum opinion described the effects of the Veteran’s hearing loss in great detail and includes the examiner’s personal impression of the Veteran’s ability to hear during their phone conversation. The Veteran has also been rated as non-compensable during the entire period on appeal, demonstrating no average impairment of earning capacity while applying the criteria set forth in VA’s schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Further, the Audiologist again concluded that, with the properly fit amplification, the Veteran would not be precluded from gainful employment due to his noncompensable service-connected hearing loss.

The Board finds that the preponderance of the evidence is against a finding that his service connected disabilities render him unemployable. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER

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

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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