Evelyn M. Todd v. Robert A. McDonald

27 Vet. App. 79, 2014 U.S. Vet. App. LEXIS 1514, 2014 WL 4329647
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 3, 2014
Docket13-0067
StatusPublished
Cited by16 cases

This text of 27 Vet. App. 79 (Evelyn M. Todd v. Robert A. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evelyn M. Todd v. Robert A. McDonald, 27 Vet. App. 79, 2014 U.S. Vet. App. LEXIS 1514, 2014 WL 4329647 (Cal. 2014).

Opinion

BARTLEY, Judge:

Veteran Robert M. Todd appealed through counsel a December 20, 2012, Board of Veterans’ Appeals (Board) decision denying an evaluation in excess of 80% for bilateral defective hearing on an extraschedular basis pursuant to 38 C.F.R. § 3.321 and entitlement to a total disability evaluation based on individual unemploya-bility (TDIU). Record (R.) at 3-12. On April 6, 2014, after briefing had been completed, Mr. Todd died. On July 7, 2014, counsel filed a notice of death, a copy of Mr. Todd’s death certificate, and a motion to substitute as appellant the veteran’s surviving spouse, Evelyn M. Todd. The Court granted the motion on July 23, 2014, and will consider the arguments advanced by the veteran as Mrs. Todd’s own.

This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Given the facts of this case and the lack of recent binding precedent addressing certain aspects of TDIU evaluations, disposition by panel is appropriate. See Frankel v. Derwinski 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will set aside the December 2012 Board decision and remand those matters for additional development and readjudication, for purposes of entitlement to accrued benefits, consistent with this decision.

I. FACTS

Mr. Todd served on active duty in the U.S. Air Force from February 1952 to March 1954. R. at 521. In March 2009, he sought service connection for bilateral hearing loss based upon in-service exposure to jet engine noise. R. at 481-83, 487-97. He submitted a March 2009 private audiologist letter stating that the veteran suffered from “moderate sloping to profound sensorineural hearing loss bilaterally” and opining that this loss was as likely as not related to service based on the veteran’s report of in-service noise exposure. R. at 446.

In May 2009, the veteran submitted a statement in which he reiterated the nature of his in-service exposure to noise and recounted a history of deteriorating hearing and the effect it had on his employment. He stated that, as part of his military duties at Craig Air Force Base in Alabama, he made frequent trips to the flight line where he was subjected to the noise of jet engines and the inhalation of jet exhaust fumes. R. at 413. While working for an engineering company in the 1970s, Mr. Todd “noticed that [he] was having some difficulty in talking on the telephone and understanding conversation in a nois[y] room.” Id. By 1991, the veteran asserted, “[his] hearing had deteriorated to the point that [he] was reduced to entry level positions”; he was informed that he would not be able to keep his job as an office manager if he did not obtain hearing aids. R. at 415. At the time of writing, Mr. Todd said that even with hearing aids he could no longer speak on *83 the telephone “with any degree of understanding as to what the other party is saying” and that even in-person conversations were difficult. Id.; see also R. at 483 (March 2008 statement: “I am now medically disabled and cannot work.”). Also in May 2009, a VA audiologist opined that hearing loss was at least as likely as not caused by Mr. Todd’s service. R. at 426-27.

The VA regional office (RO) in July 2009 granted service connection for bilateral hearing loss and assigned a 30% evaluation effective March 23, 2009. But the RO denied entitlement to TDIU, stating “the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.” R. at 398-408. The following month, Mr. Todd filed a Notice of Disagreement (NOD) as to the 30% evaluation assigned and the denial of TDIU. In the NOD, he stated that he had been terminated from his engineering job because, even with hearing aids, his hearing was so degraded that he posed a liability to himself and other workers; he was required in 2002 to obtain another set of hearing aids to enable him to hear well enough to keep his job; he was unable to carry on as a Sunday school teacher because he could “no longer understand the statements, questions, or responses of the participants”; he is unable to communicate via the telephone any more; and he is “virtually isolated” and “unemployable” because of his hearing loss. R. at 384, 387. The RO continued to deny TDIU and a higher evaluation for hearing loss (R. at 291-315), and Mr. Todd appealed to the Board (R. at 274-85 (reiterating problems that hearing loss posed to obtaining and maintaining employment)).

The veteran testified at an April 2011 Board hearing that he has difficulty understanding people during conversation if there is any “extraneous noise around” and that “99 times out of 100” he is unable to hear telephone calls. R. at 220. He further testified that this difficulty hearing caused him to avoid contact with others and that he refrained from driving on advice that his difficulty hearing posed a hazard on the road. R. at 221-22. A letter from Mrs. Todd, the veteran’s spouse, reiterated these problems. R. at 245-47. In June 2011, the Board remanded the hearing loss claim for a VA audiology examination and referred the TDIU matter to the RO. 2 R. at 156-72.

After administering a November 2011 audiology examination, the VA examiner diagnosed hearing loss and tinnitus; opined that hearing loss affected the ordinary conditions of daily life, including the ability to work; and stated that Mr. Todd, even with the use of hearing aids, will experience difficulty understanding conversational speech and “will likely be limited in his ability to function effectively in an employment setting that requires receptive communication skills, especially if the setting includes background noise.” R. at 148-49. In December 2011, the RO increased the hearing loss evaluation to 80%, but no higher, and granted service connection for tinnitus with a 10% evaluation, both effective November 9, 2011. R. at 124-40. By way of a January 5, 2012, letter, VA informed Mr. Todd of the increased benefits and also that he may qualify for VA vocational rehabilitation employment services. VA enclosed VA Form 28-8890, “Important Information about Vocational Rehabilitation Benefits,” R. at 133, which informs veterans, among *84 other things, that the VA vocational rehabilitation program helps them prepare for, get, and keep a suitable job and that, after a veteran applies for the program, a VA counselor schedules an evaluation requiring several hours to complete, the results of which are used to decide whether the veteran meets the conditions to receive vocational rehabilitation.

Also in January- 2012, VA obtained the following audiology opinion as to Mr. Todd’s employability:

[The v]eteran has severe bilateral senso-rineural hearing loss with poor word recognition ability.

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Bluebook (online)
27 Vet. App. 79, 2014 U.S. Vet. App. LEXIS 1514, 2014 WL 4329647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evelyn-m-todd-v-robert-a-mcdonald-cavc-2014.