judge_norm: K OSBORNE

text:
Citation Nr: 1620000
Decision Date: 05/17/16    Archive Date: 05/27/16

DOCKET NO.  15-07 022	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for service-connected bilateral hearing loss.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected bilateral hearing loss, to include on an extraschedular basis pursuant to 38 C.F.R. � 4.16(b).

WITNESS AT HEARING ON APPEAL

The Veteran and his granddaughter

ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel

INTRODUCTION

The Veteran had recognized service in the Philippine Guerrilla Service from January 1944 to April 1945.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of  Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which granted service connection for bilateral hearing loss and assigned an initial 50 percent rating, effective November 19, 2013.

In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file.

The Veteran has made multiple assertions that he is unemployable due to his service-connected bilateral hearing loss.  See, e.g., June 2014 Notice of Disagreement; March 2014 VA Examination.  In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  In light of Rice, a claim for a TDIU has been added to this appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2015).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

The Veteran's bilateral hearing loss has been manifested, at its worst, by Level VIII hearing in the right ear and Level VIII in the left ear.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 50 percent for bilateral hearing loss are not met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

In November 2013, the Veteran filed his claim as a "fully developed claim" pursuant to the Secretary's program to expedite VA claims.  Under this framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA.  When filing a fully developed claim, a Veteran submits all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers, which will be obtained by VA.  Under certain circumstances, additional development, including obtaining additional records and providing the Veteran with a VA examination, may still be required prior to the adjudication of the claim.  See VA Form 21-526EZ.

The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim for service connection, as well as the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings and effective dates.  See id.

After the grant of service connection in the March 2014 rating decision on appeal, the Veteran appealed with respect to the propriety of the initially assigned rating for his bilateral hearing loss.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, � 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for bilateral hearing loss was granted in March 2014, and an initial 50 percent rating was assigned, effective November 19, 2013 (the date the Veteran's claim was received).  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. � 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting in the procurement of service treatment records and pertinent post-service treatment records, and by providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The claims file contains the Veteran's service treatment records, a private treatment record, and a March 2014 VA examination report.  Moreover, the record contains the Veteran's lay statements, including his testimony before the undersigned at the February 2016 Board hearing.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.

Additionally, as mentioned in the preceding paragraph, the Veteran was afforded a VA examination in March 2014 to evaluate the nature and severity of his bilateral hearing loss.  The Board finds that the March 2014 examination is adequate to adjudicate the Veteran's initial rating claim.  Specifically, as discussed below, the examination report is based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, as well as complete audiometric testing.  Additionally, the report describes the Veteran's hearing loss in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

Furthermore,  the examination report addresses the functional effects of the Veteran's hearing loss disability so as to allow the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. � 3.321(b).  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Specifically, the March 2014 VA examiner noted that the Veteran's bilateral hearing loss impacted the ordinary conditions of his daily life, including his ability to work due to difficulties conversing with others and trouble understanding spoken words.

Furthermore, the evidence does not show that the Veteran's hearing loss has materially worsened since the March 2014 evaluation.  See 38 C.F.R. �� 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  In this regard, the Board notes that, in September 2014, the Veteran submitted a private treatment record that addressed the nature of his hearing loss; however, there is no indication that his hearing had worsened.  Furthermore, at the February 2016 Board hearing, the Veteran did not allege that his hearing had worsened, only that it warranted a higher rating.  Accordingly, the Board finds that the March 2014 examination report is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary.

Additionally, in February 2016, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, the Court held that 38 C.F.R. � 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

Here, during the February 2016 hearing, the undersigned Veterans Law Judge noted the issue then on appeal.  Also, information was solicited regarding the current nature and severity of his service-connected bilateral hearing loss.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate his claim based on the current record.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430(1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.
38 C.F.R. � 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. � 4.3.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected bilateral hearing loss is currently assigned an initial 50 percent rating under Diagnostic Code 6100.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. � 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIa, in exceptional cases as described in 38 C.F.R. � 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R.
� 4.85.

Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. � 4.86.  Under 38 C.F.R. � 4.86, an exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz  and 70 decibels or more at 2000 Hertz.

The pertinent evidence of record consists of the March 2014 VA examination and the Veteran's lay statements, including his testimony before the undersigned Veterans Law judge during his February 2016 hearing.

In connection with his claim for service connection, the Veteran underwent a VA examination in  March 2014, which revealed the following puretone thresholds, in decibels, as follows:

HERTZ
1000
2000
3000
4000
RIGHT
70
90
95
105+
LEFT
70
85
95
105+

The puretone threshold average was 90 in the right ear and 89 in the left ear.  Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 0 percent in the left ear.  However, the examiner certified that the use of the Veteran's speech discrimination scores was not appropriate due to the Veteran's language difficulties, cognitive problems, and inconsistent word recognition scores. With regard to the functional impact of the Veteran's hearing loss, the examiner indicated that his disability would impact his ordinary conditions of daily life, including his ability to work.  In this regard, the examiner indicated difficulties conversing and trouble understanding spoken words.

Because the Veteran displayed an exceptional pattern of hearing impairment, and because the examiner certified that use of speech discrimination scores was in appropriate, use of Table VIa is appropriate.  Based upon Table VIa, the Veteran's audiometric test results equate to Level VIII hearing in the right ear and Level VIII hearing in the left.  38 C.F.R. � 4.85.  Therefore, under Table VII, the Veteran is entitled to no more than a 50 percent rating under Diagnostic Code 6100.

In summary, based upon the March 2014 VA audiological examination, the Board finds that, the Veteran's right ear hearing loss has been no worse than Level VIII, and his left ear hearing loss has been no worse than Level VIII.  As such, the Veteran is not entitled to an initial rating in excess of 50 percent for his bilateral hearing loss.  See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulties conversing with others and trouble understanding spoken words, he is not competent to state that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  More importantly, the precise audiometric test findings greatly outweigh any subjective perceptions of decreased hearing acuity.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his symptomatology has been stable for this disability through each stage in the appeal.  Therefore, assigning additional staged ratings for such disability is not warranted.

Additionally, the Board has contemplated whether the case should be referred for extraschedular consideration.  An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. � 3.321(b)(1)(2015).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. � 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extraschedular rating under
� 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  Id.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular criteria for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology.

Specifically, the Veteran indicated he has difficulties conversing and trouble understanding spoken words.  The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. �� 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning that veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).

The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.    However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

Consequently, the Board finds that the Veteran's bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated.  There are no additional symptoms that are not addressed by the rating schedule, and the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 50 percent for bilateral hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. � 5107; 38 C.F.R. �� 4.3, 4.7.

ORDER

Entitlement to an initial rating in excess of 50 percent for the Veteran's service-connected bilateral hearing loss is denied.

REMAND

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. � 5103A (West 2014); 38 C.F.R. � 3.159 (2015).

As noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying claim.  Rice, 22 Vet. App. at 453-54.  According to the March 2014 VA examiner, the Veteran's bilateral hearing loss would have a significant impact on his ability to work.  Furthermore, in his June 2014 Notice of Disagreement, the Veteran indicated that his bilateral hearing loss prevented him from working.

In order to establish 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.A. � 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; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

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 disability and it is rated as 60 percent disabling or more, or, 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).

In this case, the Veteran's only service-connected disability is his bilateral hearing loss, which is rated at 50 percent disabling.  Therefore, the Veteran has never met the minimum schedular criteria for a TDIU under 38 C.F.R. � 4.16(a) at any time during the appeal period.

However, while the Veteran does not currently meet the schedular criteria for a TDIU, there is evidence that calls into question his ability to secure or follow substantially gainful employment due to his service-connected disability, including the March 2014 VA examination report and the June 2014 Notice of Disagreement.

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.  Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. � 4.16(a).  38 C.F.R. � 4.16(b).  The Board does not have the authority to assign an extra-schedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  However, the Board does have the authority to decide whether a claim should be referred to the Director, Compensation Service.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

With respect to the assignment of a TDIU under the provisions of 38 C.F.R. � 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director, Compensation Service, for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis.  The Board finds that the medical and lay evidence discussed above provides plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected bilateral hearing loss.  Accordingly, the Board finds that the claim should be submitted to the Director, Compensation Service, for extra-schedular consideration of a TDIU under 38 C.F.R. � 4.16(b).

The Board notes that, in July 2014, the AOJ provided VCAA notice to the Veteran concerning entitlement to a TDIU.  Additionally, the AOJ included a copy of VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and requested that he complete and returned the signed copy if he intended to pursue a claim for a TDIU.  Although the Veteran did not complete and return the form, to ensure accurate information upon which to decide his claim, the AOJ should once again provide him with a copy of VA Form 21-8940 and ask that he return the completed copy.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1.  Provide the Veteran with, and ask that he complete and return, a Veterans Application for Increased Benefits Based on Unemployability, VA Form 21-8940, and a Request for Employment Information in Connection with Claim for Disability Benefits, VA Form 21-4192 for each of the Veteran's former and current employers.

2.  Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. � 4.16(b).

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or 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).

______________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: NATHANIEL J DOAN

disposition: granted

condition: tinnitus

text:
Citation Nr: 1621000
Decision Date: 05/24/16    Archive Date: 06/02/16

DOCKET NO.  12-33 728A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUE

Entitlement to service connection for tinnitus.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1972 to August 1976.

This matter is before the Board of Veteran's Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In November 2014, the Board issued a decision denying the Veteran's claim, which he appealed to the Court of Appeals for Veterans Claims (Court).  In a December 2015 Order, the Court vacated and remanded the Board's decision for readjudication.

This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS).

FINDING OF FACT

Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to his period of active service.

CONCLUSION OF LAW

The criteria to establish service connection for tinnitus have been met.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. 	 �� 3.102, 3.159, 3.303 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2015).  Given the favorable decision by the Board, there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist.

Merits of the Service Connection Claim

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A � 1110 (West 2014); 38 C.F.R. � 3.303(a) (2015).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that his tinnitus is related to his active military service, while serving as an Aviation Ordinance handler, which placed him on the flight line at air bases and required him to be attached to aircraft carriers.

The Veteran has a current diagnosis of bilateral tinnitus, documented on a private examination in April 2010 and VA examinations in September 2010 and March 2011.  Thus, the Veteran has a current disability, and the first element for service connection is satisfied.

On the question of in-service injury or disease, VA has conceded to in-service exposure to acoustic trauma.  Although, the Veteran's STRs are negative for any complaints of tinnitus, treatment and/or diagnoses and the July 1976 separation examination showed normal hearing, with no report of tinnitus, the Veteran's statements of exposure to loud noises in service are supported by his military occupation specialty (MOS) as an Aviation Ordinance Man.  Therefore, the Board finds that the Veteran was exposed to acoustic trauma, and the second element for service connection is satisfied.

The question remains whether there is a nexus, or link, between the current shown tinnitus and the Veteran's military service.  A private audiological examiner opined that the Veteran's tinnitus was "secondary to noise exposure while in the military."  See the March 2010 private audiological examination.  The examiner noted the Veteran's complaint of intermittent ringing in his ears that has increased to ringing that is constant.

The Veteran was afforded an audiological exam in September 2010.  The VA examiner noted the Veteran's history of military noise exposure, post service noise exposure and denial of recreational noise exposure.  The examiner opined that tinnitus was not related to noise exposure in service and determined that based on the case history of the onset of tinnitus 15 to 20 years after discharge from the military, tinnitus is not related to military noise exposure.  This examiner did not review the private examiner's positive nexus opinion.

A VA medical addendum opinion was provided in March 2011.  This VA examiner also opined that the Veteran's onset of tinnitus "10 to 15 years ago" was not related to noise exposure in service.  The examiner reasoned that research did not support a claim of delayed-onset tinnitus following an incident of noise exposure, and according to another medical doctor whom she consulted, tinnitus has an immediate onset after significant noise exposure.

The Veteran stated that his tinnitus began in service and was intermittent at its onset.  See the December 2012 VA Form 9.  The Veteran noted the examiner's statements that his tinnitus began 10 to 15 years ago, and clarified that his tinnitus had become constant 10 to 15 years prior, but had its onset in service.

There need not be a certainty of probative evidence in order for a claim to be granted.  There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claims, but such would not materially assist the Board in this determination.  However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994).

There is conflicting yet competent medical evidence as to whether the Veteran's tinnitus is caused by his acoustic trauma during his military service.  There is an approximate balance of the positive and negative evidence.  The evidence is in relative equipoise.

Resolving any doubt in the Veteran's favor, service connection for the Veteran's bilateral tinnitus is granted.  38 U.S.C.A. � 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for bilateral tinnitus is granted.

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

Department of Veterans Affairs


judge_norm: H SEESEL

disposition: dismissed

benefit: tdiu

disposition: remanded

text:
Citation Nr: 1622000
Decision Date: 06/02/16    Archive Date: 06/13/16

DOCKET NO.  09-33 630	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to a total disability rating based on individual unemployability.

2.  Entitlement to service connection for neurological problems due to toxin exposure.

3.  Entitlement to service connection for chemical sensitivity due to exposure to toxins.

4.  Entitlement to service connection for hot flashes as a result of toxin exposure.

5.  Entitlement to service connection for neuropathy of the hands and feet with tingling of the toes and fingers as a result of toxin exposure.

6.  Entitlement to service connection for gastroesophageal reflux disease (GERD) with acid reflux as secondary to service-connected asthma with COPD and/or as a result of toxin exposure.

7.  Entitlement to service connection for insomnia as a result of toxin exposure.

8.  Entitlement to service connection for nerve damage with night tremors as a result of toxin exposure.

9.  Entitlement to a rating in excess of 30 percent for asthma and chronic obstructive pulmonary disease (COPD), effective February 18, 2003.

WITNESSES AT HEARING ON APPEAL

The Veteran and his friend

ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, had service from September 1987 to September 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Regional Office (RO) in Portland, Oregon.

In October 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file.  At that time, the Veteran stated on the record that he desired to withdraw his claim for total disability due to individual unemployability.  Additional evidence was received after the hearing and was accompanied by a waiver of RO consideration.  See 38 C.F.R. � 20.1304(c)(2015).

The issues of entitlement to an increased rating for depression, increased rating for erectile dysfunction, and service connection for memory problems have been raised by the record in an October 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b) (2015).

The issues of entitlement to an increased rating for asthma and COPD, service connection for neurological problems, chemical sensitivity, hot flashes, GERD, night tremors, neuropathy of the hands and feet with tingling of the toes and fingers and insomnia are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

On October 6, 2015, prior to the promulgation of a decision in the appeal, the Veteran stated on the record at his hearing before the undersigned Veterans Law Judge that he desired to withdraw his claim for a total disability rating based on individual unemployability.

CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal for the claim of entitlement to total disability due to individual unemployability have been met.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. � 20.204 (2015).

	(CONTINUED ON NEXT PAGE)

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawal of Claim for Entitlement to TDIU

At the October 2015 hearing before the undersigned VLJ, the Veteran stated on the record that he wanted to withdraw his appeal of the denial of entitlement to a total disability rating based on individual unemployability.  VA regulation provides for the withdrawal of an appeal to the Board when on the record at a hearing, and can occur at any time before the Board promulgates a final decision on the matter in question.  See 38 C.F.R. � 20.204(b) (2015); Hanson v. Brown, 9 Vet. App. 29, 31 (1996).

When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to the determinations that had been previously appealed.  Consequently, in such an instance, dismissal of the pending appeal for entitlement to a total disability rating based on individual unemployability is appropriate.  See 38 U.S.C.A. � 7105(d).

Accordingly, further action by the Board on the claim for a total disability rating based on individual unemployability is not appropriate and the Veteran's appeal on this issue should be dismissed.  Id.

ORDER

Entitlement to a total disability rating based on individual unemployability is dismissed.

REMAND

Unfortunately, the Veteran's claims for entitlement to an increased rating for asthma and COPD, service connection for neurological problems, chemical sensitivity, hot flashes, GERD, night tremors, neuropathy of the hands and feet with tingling of the toes and fingers and insomnia must be remanded for further development.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.

In short, the Veteran submitted medical records on two compact discs at his October 2015 Board hearing.  However, the Board notes that these records have not been associated with the Veteran's claims file and are not available for review.  These records have been identified as relevant to the claims on appeal and must be obtained before a decision can be rendered.

Furthermore, the Veteran should be afforded another VA examination for his service-connected asthma and COPD as he has recently expressed an increased worsening of symptoms associated with this disability.  "VA regulations specifically require the performance of a new medical examination ... [when] 'evidence indicated there has been a material change in a disability or that the current rating may be incorrect.'"  Caffrey v. Brown, 6 Vet. App. 377, 381 (quoting 38 C.F.R. � 3.327(a)).

All relevant and ongoing VA records that are not currently of record must be obtained.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, these issues are REMANDED for the following action:

1.  Obtain all VA treatment records that have not been associated with the claims file since August 2013.  A copy of any records obtained, to include a negative reply, should be included in the claims file.

2.  Upload all documents contained on the two compact discs submitted by the Veteran at his October 2015 Board hearing.

3.  The Veteran should be afforded a VA examination to determine the current nature and severity of  his service-connected asthma and COPD.  The claims folder should be made available to the examiner for review before the examination.

4.  Obtain an VA opinion from an appropriate medical professional, and/or conduct another VA examination if necessary, to determine the etiology of the Veteran's  claims for neurological problems, chemical sensitivity, hot flashes, GERD, night tremors, neuropathy of the hands and feet with tingling of the toes and fingers and insomnia.  The claims folder should be made available to the examiner for review before the examination.  The examiner is asked to comment on the following:

a) The examiner should clarify diagnoses of all conditions the Veteran has currently has related to neurological problems, chemical sensitivity, hot flashes, GERD, night tremors, neuropathy of the hands and feet with tingling of the toes and fingers and/or insomnia.

In rendering this opinion, the examiner should also discuss whether the chemical sensitivity manifests as a skin disability such as a rash.

b) For each diagnosed disability, is it at least as likely as not (50 percent probability or greater) that the current neurological problems, chemical sensitivity, hot flashes, GERD, night tremors, neuropathy of the hands and feet with tingling of the toes and fingers and/or insomnia are related to service?

The examiner should specifically discuss the Veteran's reported history of exposure to toxins during service in Atsugi, Japan.

4.  After the development requested above has been completed to the extent possible, the RO should again review the record.  If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or 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 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).

______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: M E LARKIN

text:
Citation Nr: 1624000
Decision Date: 06/15/16    Archive Date: 06/29/16

DOCKET NO.  11-08 914	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUE

Entitlement to service connection for a jaw condition, to include temporomandibular joint disorder (TMJ).

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. Biggins, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1973 to July 1975.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a
March 2010 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a June 2013 Board video hearing, and a transcript of this hearing is of record.

This appeal was previously before the Board in March 2014.  The appeal was remanded for a VA examination.  As discussed below, the VA examination obtained is not adequate and thus the claim must be remanded.  See Stegall v. West, 11 Vet. App. 268 (1998).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

In response to a March 2014 Board remand the Veteran was provided with a May 2014 VA examination.  The examiner noted a diagnosis of TMJ in 2009 following pain and popping in the Veteran's jaw.  The examiner performed a physical examination, reviewed the Veteran's claims file, and concluded the Veteran's TMJ was less likely than not incurred in or caused by his active service because the Veteran's service treatment records (STRs) did not "indicate that [V]eteran complained of or was treated for a jaw condition."

The Board finds the opinion provided by the May 2014 VA examiner inadequate.  The Board notes it is impermissible to base a nexus opinion solely on the lack of documentation of the claimed condition in the Veteran's STRs.  Additionally, the VA examiner did not address the Veteran's lay statements indicating that he suffered blows to the and jaw during physical training in service, but did not seek any treatment at that time because he was concerned it would result in an extension of his basic training.  See June 2013 Board video hearing testimony and June 2014 Veteran Statement.  Nor did the VA examiner address the Veteran's testimony at his June 2013 Board video hearing that he was informed by his dentist that an injury in the jaw could take several years to manifest as TMJ.  Therefore, the claim must be remanded in order to obtain an addendum opinion

Accordingly, the case is REMANDED for the following action:

1.  Contact the VA examiner who examined the Veteran in May 2014 and request an addendum opinion.  The claims file and copies of all pertinent records should be made available to and reviewed by the examiner.

Based on the review of the record, the examiner should address for any currently diagnosed jaw condition, is it at least as likely as not (50 percent or greater possibility) that the condition was incurred in or is otherwise related to service?

The examiner must consider the Veteran's June 2013 Board video hearing testimony that his dentist informed him that an injury to his jaw could take several years to manifest as TMJ and June 2014 statement indicating that he did not report an in-service jaw injury due to a concern that it would cause an extension of his basic training.

A rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, she shall provide a complete rationale stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that she has exhausted the limits of current medical knowledge in providing an answer to the question.

If the May 2014 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion.  If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled.  All indicated tests and studies should be undertaken.

2.  Then adjudicate the Veteran's service connection claim.  If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter 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).

_________________________________________________
M.E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2015).


judge_norm: THOMAS J DANNAHER

disposition: denied

text:
Citation Nr: 1625000
Decision Date: 06/21/16    Archive Date: 07/11/16

DOCKET NO.  08-30 278	)	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 (TDIU) due to service-connected disabilities prior to January 5, 2012.

REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney

ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel

INTRODUCTION

The Veteran served on active duty from March 1971 to March 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claim for increased ratings for service-connected cervical spine and headache disabilities.

By way of procedural background, in December 2011 the Board remanded the Veteran's tension headaches and cervical spine rating claims for further development.  A July 2014 Board decision denied the claim for a rating in excess of 20 percent for the cervical spine disability and again remanded the tension headaches rating claim for further development.

The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which issued an April 2015 Order granting a March 2015 Joint Motion for Partial Remand (Joint Motion), vacating that portion of the July 2014 Board decision that denied entitlement to an increased rating for the cervical spine disability, and remanded the matter to the Board for further review.  The parties to the Joint Motion agreed that an additional VA spine examination was required to address whether there is functional loss on use or due to flare-ups.  The parties also agreed that after development of the increased rating claim on remand, the Board should consider whether TDIU entitlement is reasonably raised by the record and whether extra-schedular consideration is appropriate.

After the claim was remanded by the Court to the Board, and while the case was awaiting readjudication and issuance of a new Board decision, the RO awarded a TDIU, effective April 28, 2015, in a July 2015 rating decision.  That decision also granted service connection for left upper extremity radiculopathy associated with the cervical spine disability, increased the assigned rating for radiculopathy of the right lower radicular group (right upper extremity) to 40 percent, and granted basic eligibility to Dependents' Educational Assistance (DEA), all effective April 28, 2015.  A letter dated August 14, 2015 enclosed a copy of the July 2015 rating decision and notified the Veteran and his attorney of the decision.

A notice of disagreement (NOD) received on September 18, 2015 from the Veteran's attorney expressed disagreement on the Veteran's behalf with the July 2015 rating decision, including the initial 20 percent rating and April 28, 2015 effective date assigned for left upper extremity radiculopathy; and the April 28, 2015 effective date assigned for the award of a TDIU and grant of DEA.  The correspondence also requested service connection for right upper extremity radiculopathy with the highest possible rating.  (The Board notes, however, that service connection for right upper extremity radiculopathy, specifically affecting the right lower radicular group and associated with degenerative joint disease of the cervical spine, was already established effective April 28, 2015).  Thereafter, in November 2015 the RO issued a statement of the case (SOC) addressing the issues of entitlement to an effective date earlier than April 28, 2015 for the grant of service connection for left upper extremity radiculopathy and an effective date earlier than January 5, 2012 for the grant of entitlement to DEA.  As of this date, the Veteran has not perfected a substantive appeal and these matters are not on appeal.

In September 2015, the Board denied a rating in excess of 10 percent for tension headaches prior to January 5, 2012; awarded a 50 percent rating for tension headaches from January 5, 2012 to April 27, 2015; denied entitlement to a rating in excess of 20 percent for a cervical spine disability; and awarded entitlement to a TDIU from January 5, 2012 to April 27, 2015, among other issues.  The Board also remanded the issue of entitlement to a TDIU prior to April 28, 2015 for referral to the Director, Compensation Service, for extraschedular consideration.  At the time of the September 2015 Board Decision and Remand, the Board explained that pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Veteran's TDIU claim was part and parcel to his rating claims on appeal, and therefore also before the Board.

In a September 2015 rating decision, the RO awarded a TDIU effective January 5, 2012; a higher 50 percent rating for tension headaches effective January 5, 2012; a 20 percent rating for radiculopathy of the right lower radicular group (right upper extremity) dating back to September 11, 2005 and a higher, 40 percent rating effective April 28, 2015; and DEA effective January 5, 2012.  The only issue currently before the Board is entitlement to a TDIU prior to January 5, 2012.

FINDINGS OF FACT

1.  Prior to January 5, 2012, service connection was established for tension headaches (formerly rated as vascular headaches), rated 10 percent disabling; radiculopathy of the right lower radicular group (right upper extremity) associated with degenerative joint disease of the cervical spine, rated 20 percent disabling; and degenerative joint disease of the cervical spine, rated 20 percent disabling.  The combined evaluation for compensation for the period from September 11, 2006 through January 4, 2012 was 40 percent.

2.  The Veteran completed three years of high school; worked for a temporary labor staffing company performing construction work full-time from July 1998 to December 2000; and worked for another company performing landscape maintenance until July 2001.

3.  The most probative and persuasive evidence reflects that for the time period prior to January 5, 2012, the Veteran's tension headaches, right upper extremity radiculopathy, and cervical spine disabilities did not preclude him from securing or following a substantially gainful occupation consistent with his education and usual occupation.

CONCLUSION OF LAW

Prior to January 5, 2012, the criteria for entitlement to a TDIU are not met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. �� 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. �� 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

VA's duty to notify was satisfied by letters on October 2, 2006 and October 1, 2015.  See 38 U.S.C.A. �� 5102, 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The earlier letter notified the Veteran of the information and evidence needed to substantiate his claim for increased disability ratings, and the latter letter provided information regarding the claim for a TDIU.

The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior Remand.  Here, the AOJ provide VCAA notice to the Veteran regarding the claim for a TDIU and referred the claim to the Director, Compensation Service, for extraschedular consideration.  A November 2015 administrative decision reflects consideration of the claim for a TDIU by the Director, Compensation Service, on an extraschedular basis pursuant to the provisions of 38 C.F.R. � 4.16(b).

The evidence of record contains service treatment records, post-service VA treatment records, VA examination reports and opinions, an earnings statement from the Social Security Administration, a private vocational assessment report, and lay statements.  There is no indication of relevant, outstanding records that would support the Veteran's claim.  38 U.S.C.A. � 5103A(c); 38 C.F.R. � 3.159(c)(1)-(3).  VA provided the Veteran with several VA examinations pertinent to his service-connected disabilities, which included consideration of the impact of those disabilities on employment.  The examination reports included all necessary testing, a full examination of the Veteran, and provided information adequate to evaluate the claim.  Therefore, the examinations are adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the TDIU claim in appellate status.

II. Criteria & Analysis

As noted above, the Court directed the Board pursuant to the Joint Motion to consider whether a TDIU was reasonably raised by the record and whether extraschedular consideration was appropriate after specific development was completed for the Veteran's cervical spine disability, which was then on appeal.  Meanwhile the RO had awarded a TDIU effective April 28, 2015, and the September 2015 Board decision assigned an earlier effective date of January 5, 2012 for the award of a TDIU.  The Board remanded the remaining issue: entitlement to a TDIU prior to January 5, 2012.

The Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) was received in July 2015.  He indicated that he had been employed by a temporary labor staffing company from 1993 until he last worked in 2000.  He listed the type of work performed as manual labor and his occupation during the last year of employment as manufacturing.  He reported that all of his service-connected disabilities prevent him from securing or following any substantially gainful occupation, that he left his job due to disability, and that his disabilities affected his full-time employment in 1991.  He also reported completing three years of high school and completing computer classes in 2001 before he became too disabled to work.

Awards of TDIU are governed, in part, by 38 C.F.R. � 4.16(a).  Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, 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, the disability must 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.  See also 38 C.F.R. �� 3.340, 3.341.

Furthermore, 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, 229 (1993).

From September 1, 2006, which is the date VA received the Veteran's claim for increased ratings for his cervical spine and headache disabilities, through January 4, 2012, service connection was in effect for tension headaches (formerly rated as vascular headaches), rated 10 percent disabling; radiculopathy of the right lower radicular group [right upper extremity] associated with degenerative joint disease of the cervical spine, rated 20 percent disabling; and degenerative joint disease of the cervical spine, rated 20 percent disabling.  His combined evaluation for compensation for the period from September 11, 2006 through January 4, 2012 was 40 percent.  Thus, he does not meet the threshold schedular requirements for a TDIU under 38 C.F.R. � 4.16(a) for the pertinent time period.

With regard to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. � 4.16(b), the Board has no authority to award a TDIU under � 4.16(b) in the first instance.  Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in � 4.16(a).  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating.  See 38 C.F.R. � 4.19; see also 38 C.F.R. � 3.341; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (holding that the Board's task is to determine whether there are circumstances, apart from non-service-connected disabilities and advancing age, that would justify a [TDIU] by placing the veteran in a different position than other veterans with the [same] combined disability rating) (emphasis in original).  Thus, to prevail on a TDIU claim, the record must "reflect some factor which takes the claimant's case outside the norm of such veteran."  Id.  Moreover, the Court articulated that the "sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough....The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment."  Id. (emphasis in original).

In a November 2015 administrative decision, the Director, Compensation Service, detailed his review of the claims file, providing a statement as to the Veteran's service-connected disabilities and ratings during the period prior to January 5, 2012.  The Director noted the Veteran's employment history working full-time in the manufacturing industry and his account of leaving full-time employment in 2000 due to his disabilities.  The Director also acknowledged the Veteran's educational and vocational attainment consisting of three years of high school completed.  Finally, the Director considered other factors having a bearing on the issue of entitlement to a TDIU, such as the statement by the December 2011 VA examiner that the Veteran's cervical spine disability could significantly limit his functional ability due to decreased range of motion, subsequent VA opinions addressing the Veteran's current employability during the time for which a TDIU is already in effect, and the July 2015 opinion of a vocational counselor that the Veteran's service-connected disabilities alone had prevented him from securing and following a substantially gainful occupation since he stopped working in July 2000.

The Director concluded that entitlement to a TDIU on an extra-schedular basis was not warranted because there was no evidence that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to January 5, 2012.  The director noted, pursuant to 38 C.F.R. � 3.321(b) (regulatory provision for rating service-connected disability when the schedular evaluations are found to be inadequate), that the record presented no evidence of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization that would render application of the schedular rating criteria used to evaluated the Veteran's service-connected disabilities inadequate.  The Director added that the March 2001 VA mental health record showing the Veteran was seeking employment after July 2000 rendered the "July 2015 vocational assessment of no probative value."

For the reasons discussed below, the Board agrees with the Director, although for different reasons, that entitlement to a TDIU on an extraschedular basis is not warranted.  The Board also finds that, although the Veteran's service-connected disabilities place limitations on his employment, these limitations are not such as to render him unable to secure and follow a substantially gainful occupation.

The Veteran's DD214 and VA education file reflect that he completed eleventh grade.  After separation from service, he had applied for, and received, education assistance to obtain his GED; however, the assistance allowance was discontinued in September 1973, the date he terminated his attendance in the GED course.

VA treatment records dated from 1994 to 1998 mostly document the Veteran's failure to report for scheduled appointments in the orthopedic and rheumatology clinics.  A September 1997 mental health record documents that the Veteran had recently been hospitalized for mental health problems and had been taking medications for hallucinations.  He described loss of memory, being unable to think, consuming a six-pack of beer at a time, and taking Ibuprofen for hand and knee pain, for which he was being seen by rheumatology.

Information from the Veteran's last employer was previously received in connection with the Veteran's 2001 claim for VA nonservice-connected pension benefits, which were granted in a September 2001 rating decision.  In August 2001, a supervisor from Labor Ready verified that the Veteran had worked for the company from July 1998 to December 2000 performing construction work until his employment was terminated because there was "no more work" for the Veteran.  Information was also received from a subsequent employer, a maintenance and landscaping company, which reported that the Veteran had been employed full-time from March 2001 to July 2001, but also listed dates of employment from August 1999 to March 2001.  The employer reported that the Veteran performed landscape maintenance without losing any time from work due to disability, but was terminated due to "personal disagreement."

Contemporaneous VA treatment records reflect that the Veteran was hospitalized for psychiatric treatment and safe detoxification for a week in February 2001 after presenting with psychosis not otherwise specified (NOS) with a strong odor of alcohol on his breath.  He reported working in construction, but stated, "Construction is slow now."  He admitted to drinking a 12-pack of beer daily, smoking pot if offered, and eating from garbage cans.  The admitting nurse remarked that the Veteran appeared "very disheveled and dirty with a strong body odor."  He complained of bilateral knee pain with creaking in his knees when he squats and chest pain.  An acute care physician note from that hospitalization reflects an assessment of history of treatment for psychosis NOS three years ago with severe degree of social stressors including chronic unemployment and homelessness.  The examiner observed that the Veteran was more confused, paranoid and anxious at present and was complaining of bilateral knee pain; however, the "complaint is unusual in that he is unsure if the discomfort is from the knees directly or from the dudes thinking the knees feel 'different.'"

VA treatment records reflect that the Veteran received inpatient psychiatric and alcohol detoxification treatment again in March 2001 after presenting to the emergency department feeling depressed and confused.  He reported hearing voices since a young age, possibly as a child, and that the "'dudes' in his head are confused and battling in his head."  He reported having poor concentration and memory, stating that he joined the military to avoid using his memory.  He stated he could not recall having any goals, but later indicated he would like to get a job and have a place of his own to live.  He admitted having some legal problems in the past related to driving, including "some drunk driving tickets."  He disclosed working in construction in the past with his "last employment being in December 2000 with Labor Ready."  The discharge diagnosis was depressive disorder NOS; psychosis NOS; rule out cognitive defect; cocaine dependence, in remission.  The Axis IV psychiatric diagnosis was lack of social or familial support; unemployment; homelessness; and polysubstance abuse.

Contemporaneous in time to his September 2006 claim for increased disability ratings for cervical spine and headache disabilities, a February 2006 VA urgent care record reflects that the Veteran presented to receive help completing paperwork for "Food Stamps."  He stated he was currently not working due to pain in his wrist and hand and that he was scheduled for hand plastic surgery in March 2006.  Other records document that surgery was scheduled for March 2006 to re-excise a recurrent right wrist ganglion cyst.  A February 2006 addendum note indicates that the Veteran's physician wrote a letter indicating that the Veteran was able to return to light sedentary work.

During a May 2006 VA neurosurgery clinic visit, the Veteran complained of neck and right arm pain, numbness in the right ulnar distribution radiating up the entire arm to the neck, and some right-sided neck pain associated with this numbness.  He disclosed consuming ten beers daily.  The report of a cervical spine MRI noted degenerative disc disease.

A September 2006 VA treatment record reflects the Veteran's complaint of chronic neck pain with radiation of pain with numbness and tingling into his hands bilaterally.  He denied any headaches.  He admitted to drinking seven to nine beers five to six days per week with weekly marijuana use.  In October and November 2006, the Veteran participated in physical therapy for neck and right arm pain.  A November 2006 record notes the Veteran's complaint of constant neck pain that goes down his arm to his fingers.  The therapist noted that the Veteran "continuously stated that his arm is dead, but is able to use it functionally and has feeling in it.  Patient only complains of numbness into fingers."

In October 2006, the Veteran was afforded a VA examination to evaluate the current severity of his tension headaches and cervical spine disabilities.  Regarding his headaches, the Veteran related experiencing a constant 5/10 throbbing headache on the top of his head.  He reported experiencing flare-ups three to four times per week with the only change in symptoms being an increase in severity to 9/10.  He stated the headaches were alleviated with Tylenol.  The examiner indicated that during flare-ups there was no associated loss of function or disability and that the Veteran is able to perform ordinary activity, but at a slower pace.  The Veteran did not report any associated photophobia, nausea, vomiting, auras, or seizures.  The examiner noted that the headaches and flare-ups were not prostrating in nature.

Regarding his cervical spine disability, the Veteran described having constant lower cervical spine pain that radiates to the right shoulder and down his right forearm with numbness in the right fourth and fifth fingers.  He did not report having any flare-ups of neck pain.  He reported taking Tylenol two to three times per week, which helped to reduce the intensity of the pain.  He indicated he could walk four to five blocks without any difficulty, but he did not drive because his license had been revoked.  Regarding functional loss, the Veteran reported he had to roll out of bed in the morning and had difficulty putting on his shirt due to neck pain.  He stated that he had not worked since 2001.  Reported examination findings included pain with motion; no evidence of muscle atrophy, and bilateral upper extremity strength was intact; and diminished sensation in the right hand compared to the left hand.

During February 2008 VA primary care treatment, the Veteran denied having headaches, but requested medication for chronic neck pain.  Examination of his neck revealed full range of motion with crepitus.  Tylenol and Flexeril were prescribed for pain as needed.

During January 2009 VA treatment, he complained of continued chronic neck pain, worse with recent snow shoveling.  He stated that "Flexeril helped some."  He denied numbness or tingling in his upper extremities.  Examination of the cervical spine revealed full range of motion with non-tender spine on palpation.

A June 2011 VA primary care note reflects that the Veteran presented for a follow-up visit for chronic neck pain, but had no current complaints.  He did report cutting his alcohol use to six to eight 16-ounce beers three to four times per weeks.

The Veteran was afforded a VA spine examination in December 2011.  He described having flare-ups of neck pain when picking up any heavy object and having worse pain in the morning.  Examination revealed mild numbness of the right upper extremity involving the C8/T1 nerve roots (lower radicular group).  The examiner indicated that over the past 12 months the Veteran had experienced an incapacitating episode of cervical spine intervertebral disc syndrome lasting at least one week, but less than two weeks.  Regarding the impact of the Veteran's cervical spine disability on his ability to work, the examiner noted the Veteran's report that he had to quit work in 2001 due to neck pain and remarked that the neck pain could significantly limit functional ability due to decreased range of motion.

In support of the claim for a TDIU, the Veteran's attorney submitted a September 2014 earnings record from the Social Security Administration (SSA) on the Veteran's behalf in July 2015, which reflects that the Veteran worked and earned income from 1969 through 1991, had no income from 1992 through 1997, worked and earned income again from 1998 through 2000, and had no income from 2001 through 2012.

The attorney also submitted a June 2015 "individual unemployability assessment (TDIU)" report by a vocational consultant, to whom the attorney had referred the Veteran.  The consultant, C. B., M.Ed., CDMS [Certified Disability Management Specialist], indicated he had reviewed the Veteran's claims file and assessed his employability via teleconference.  The report reflects consideration of the Veteran's educational background, work history, and medical history.  The Veteran reported that he did not work from 1992 to 1998 due to ongoing head and neck pain and stopped working in 2000 due to worsening headaches, neck pain, and right arm pain.  The report also notes that due to his "cervical stiffness and pain," the Veteran "chooses not to drive whatsoever," and instead rides the bus, which is a five minute walk from his home.  The consultant concluded that the Veteran had consistently complained of totally disabling neck and headache pain since early 2001.  The consultant opined that it was at least as likely as not that the Veteran's service-connected disabilities alone have prevented him from securing and following a substantially gainful occupation since he stopped working in July 2000.

Having reviewed the medical and lay evidence of record, the Board finds that a TDIU is not warranted prior to January 5, 2012, including on an extraschedular basis.  Here, the Veteran's cervical spine, right upper extremity radiculopathy, and tension headache disabilities have been considered by the currently assigned disability ratings and his symptomatology has been reasonably contemplated by the applicable rating criteria.  See September 2015 Board decision.

The Board acknowledges the Veteran's pain due to his service-connected disabilities, some limitation of motion of the cervical spine, and mild numbness and decreased sensation in the right hand and fingers associated with the cervical spine disability.  However, prior to January 5, 2012, the evidence of record does not support a conclusion that his service-connected disabilities alone made him unemployable for the period under consideration.  In this regard, the Board notes that the December 2011 VA spine examiner concluded the Veteran's neck pain could significantly limit functional ability due to decreased range of motion, but did not find that the cervical spine disability would preclude employment.  Moreover, although the Veteran described frequent headaches during VA examinations, his VA treatment records during the relevant period do not document reports of headaches with the same frequency or to the same severity.  Similarly, although he has reported right upper extremity numbness and tingling, his VA treatment records reflect that he retained functional use of his right arm.

The Board also emphasizes that at the time the Veteran last worked in 2001, he had been hospitalized twice for psychosis and alcohol detoxification and a VA treatment provider noted his history of "chronic unemployment" prior to that time.  The Board observes that the February 2001 assessment of chronic unemployment is consistent with the SSA earnings report showing the Veteran's absence from the workforce between 1992 and 1997 and again since 2001.  In addition, since his increased rating claim was received in 2006, the medical evidence of record documents the Veteran's continued alcohol abuse, apparently resulting in the revocation of his driver's license.  While it is reasonable to infer that the Veteran's psychosis and ongoing alcohol abuse significantly hindered the Veteran's capacity for employment prior to January 5, 2012, the Board can only consider the effect that service-connected disability had on his ability to work during this period.

The Board has considered the conflicting opinions of the Director of Compensation Service and the vocational consultant.  The Board agrees with the Director that a TDIU is not warranted on an extraschedular basis prior to January 5, 2012 because the Veteran's disabilities were not shown to be exceptional or unusual to the extent that they interfered with any employment or resulted in frequent periods of hospitalization.  Rather, the medical evidence documented that the service-connected disabilities could cause difficulty with employment, but would not preclude employment.  Again, the Veteran's headaches were not prostrating and prolonged and he retained functional use of his cervical spine and right upper extremity, although impaired by pain and some limitation of motion.  These findings support the conclusion that the Veteran was not incapable of performing the physical acts requirement by employment, consistent with his eleventh-grade education and work history as a laborer performing manufacturing, construction, and landscape maintenance work, prior to January 5, 2012.

The Board also considered the assessment by the Director that the vocational consultant's opinion was entitled to no probative value because the consultant overlooked a record indicating the Veteran was seeking employment after July 2000.  The Board disagrees that the omission causes the entire opinion to have no probative value.  Nevertheless, the Board finds the opinion unpersuasive because the conclusion that the Veteran has been unable to secure and follow a substantially gainful occupation since July 2000 due to service-connected disabilities alone is unsupported by the medical evidence of record, which does not document exceptional or unusual disability levels associated with the cervical spine, right upper extremity radiculopathy, and tension headache disabilities.  Contemporaneous reports from the Veteran's last employers noted that the Veteran was terminated because there was "no more work" and due to "personal disagreement" and not because of physical impairment.

In summary, the Board finds a preponderance of the evidence is against a finding that circumstances, apart from nonservice-connected disabilities and advancing age, would justify a TDIU by placing the Veteran in a different position than other veterans with the same combined disability rating for the period prior to January 5, 2012.  The Board had previously found in the September 2015 decision that the Veteran's cervical spine, right upper extremity radiculopathy, and tension headaches were manifested by symptoms that warranted no more than 20, 20, and 10 percent disability ratings, respectively.  None of the service-connected disabilities were in receipt of the highest available rating for the assigned Diagnostic Codes; they have not been shown to warrant extra-schedular evaluations individually or collectively; and the combined evaluation during the period in question never exceeded 40 percent.  While this level of disability undoubtedly affected industrial capacity, it did not preclude employment for which the Veteran was qualified.

The preponderance of the evidence is against this claim for entitlement to TDIU prior to January 5, 2012.  Therefore, there is no reasonable doubt to be resolved.  The appeal for this matter must be denied.  38 U.S.C.A. � 5107(b) , 38 C.F.R. � 4.3.

ORDER

Prior to January 5, 2012, entitlement to a TDIU is denied.

____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs