Citation Nr: 1000208 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 08-10 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from May 1978 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran is service-connected for hidradenitis suppurativa of the scalp and groin, evaluated as 50 percent disabling; tender graft scar of the buttocks as well as by the side of the scrotum and penis associated with hidradenitis suppurativa of the scalp and groin, evaluated as 10 percent disabling; and, 15 centimeter scar from a previous colostomy associated with hidradenitis suppurativa of the scalp and groin, evaluated as 10 percent disabling. A combined disability evaluation of 60 percent is in effect. These evaluations do not meet the schedular requirements for assignment of a total disability rating based on individual unemployability. 2. The Veteran's service-connected disabilities have not been shown to be of such severity as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of a TDIU have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's claim that he is unable to work due to his service-connected disorders. Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Analysis The Veteran is service connected for hidradenitis suppurativa of the scalp and groin, evaluated as 50 percent disabling; tender graft scar of the buttocks as well as by the side of the scrotum and penis associated with hidradenitis suppurative of the scalp and groin, evaluated as 10 percent disabling; and, 15 centimeter scar from a previous colostomy associated with hidradenitis suppurative of the scalp and groin, evaluated as 10 percent disabling. A combined disability evaluation of 60 percent is in effect. Therefore, he does not meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension 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 requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). There is a distinction between extraschedular evaluations under 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.16(b). See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. 38 C.F.R. § 4.16(b) requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities that do not meet certain percentage requirements of 38 C.F.R. § 4.16(a). The report of an April 2007 VA general examination included the Veteran's report that he had not worked in the past twelve months, that his last job was three to four years earlier as a porter at a car wash and that the service- connected hidradenitis suppurativa was the major limiting factor in working. Upon examination, the examiner noted the Veteran's current extent and severity of the service- connected scars and continued a diagnosis of hidradenitis suppurativa. The examiner also opined that the Veteran's hidradenitis suppurativa did not cause limitation in the Veteran's ability to work. There is no medical opinion to the contrary. Therefore, the Board concludes the appellant is not unemployable due to his service-connected disabilities. The Veteran's service-connected disabilities may interfere with some types of work, but would not prevent him from obtaining work. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. The VA examiner determined that the Veteran's service- connected disorders do not prevent him from working. Thus, there is no need to refer the Veteran's case for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). The Veteran's representative argued that TDIU is warranted because the Veteran last worked in August 2007 and prior to that only worked for short periods of time; the lack of consistent employment is evidence of unemployability. While there is evidence that the Veteran is unemployed and has had a sporadic work history, there is no evidence that the Veteran's service-connected disabilities alone preclude employment. See Van Hoose, 4 Vet. App. at 361. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, --- F.3d ----, No.2008- 7150, (Fed. Cir. Sept. 4, 2009). The RO provided the appellant pre-adjudication notice by letter dated in December 2006. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant a physical examination, obtained a medical opinion as to the severity of the Veteran's service-connected disabilities, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A TDIU is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs