Citation Nr: 1009771 Decision Date: 03/15/10 Archive Date: 03/24/10 DOCKET NO. 05-21 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to April 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO denied entitlement to a TDIU. The matter was remanded by the Board to the RO, via the Appeals Management Center (AMC) in May 2008 and July 2009 for additional development of the record. FINDINGS OF FACT 1. Service connection has been established for bilateral pes planus/plantar fasciitis, currently rated as 50 percent disabling; and, hemorrhoids, currently rated as 10 percent disabling; with a combined disability rating of 60 percent. 2. The Veteran's service-connected disability ratings fail to meet the minimum percentage requirements on a schedular basis for a total disability rating based on individual unemployability due to service-connected disabilities. 3. The matter was referred to the Director of Compensation and Pension for a determination regarding unemployability due to service-connected disabilities; and the Director of Compensation and Pension service determined, based on the evidence of record, that the Veteran was employable in a sedentary capacity. 4. The Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.341(a), 4.16(a), 4.16(b) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2002. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for TDIU, and the relative duties of VA and the claimant to obtain evidence. Although the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the TDIU claim is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). That notwithstanding, the RO cured the defect by sending subsequent letters to the Veteran in March 2006, June 2007 and May 2008 that specifically notified the Veteran regarding the assignment of disability ratings and effective dates for any grant of service connection. The TDIU issue was thereafter readjudicated in a January 2009 supplemental statement of the case (SSOC). Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Moreover, the RO referred the matter to the Director of Compensation and Pension for a review to determine whether entitlement to a TDIU on an extraschedular basis was warranted. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. TDIU The Veteran seeks a TDIU. Currently, service connection is established for bilateral pes planus/plantar fasciitis, rated as 50 percent disabling, and hemorrhoids, rated as 10 percent disabling. Pursuant to the combined ratings table at 38 C.F.R. § 4.25, the combined disability rating is 60 percent. A TDIU 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran fails to meet these criteria because he does not have a sole service-connected disability rated at least 60 percent disabling; and although his pes planus/plantar fasciitis disability is rated as 50 percent disabling, there is not sufficient additional disability to bring the combined rating to 70 percent. In the Veteran's case, the combined rating for his service-connected disabilities reaches only 60 percent. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled, even though they fail to meet the percentage standards set forth in paragraph (a) of § 4.16. 38 C.F.R. § 4.16(b). In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. In other words, under 38 C.F.R. § 4.16(b), a TDIU might be awarded even if the requisite schedular criteria is not met if a claimant is nevertheless shown to be "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." However, the Board has no authority to award 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). The Veteran maintains that he is unable to work, and reports that he last worked in February 2002. U.S. Office of Personnel Management (OPM) records confirm that the Veteran was approved for a disability retirement in February 2002. His work prior to this retirement involved standing and lifting to some degree. The Veteran was also granted Social Security (SSA) disability benefits effective February 2002. SSA records document the Veteran as reporting that he completed high school and at least four years of college; and as having last worked in February 2002. In May 2002 the Veteran underwent a functional assessment by a private physician. During the examination the Veteran complained of chronic foot pain which he related to chronic flat feet and heel spurs. He reported that his treatment regime consisted of anti-inflammatories, orthotics for his shoes, and occasional steroid injections, and added that he had had no orthopedic follow up; only podiatry care. He also relayed a history of a fracture to his right ankle in 1993, which required placement of rods and screws, and which left him with some persistent pain to the right ankle. He reported that he used a cane for ambulation, but admitted that he was able to do light housework, including cooking, washing dishes, fixing beds, sweeping, mopping, and driving a motor vehicle. The physician noted that the Veteran ambulated with "a mild degree of stiffness due to alleged pain in the feet." He also noted that the Veteran did not use his prescribed cane during the examination, and averred that "it does not appear medically necessary." Physical examination revealed healed arthroscopic scars to the left knee with mild crepitus and mild pain, but normal range of motion. Examination also revealed a "mild to moderate degree of flat feet" with "no deformity otherwise to the foot or ankle." Pulses were +2 bilaterally with no edema. Motor strength was 5/5 without atrophy. Sensory examination revealed no focal sensory defects. Deep tendon reflexes were +2 bilaterally, and Babinsky was negative. Diagnosis was, in pertinent part, "chronic foot pain secondary to possible flat feet disorder." The physician averred that the problem appeared to be mild to moderate at most, probably improved by the use of orthotics and probably avoidance of extended standing and walking. Significantly, the examiner opined that the Veteran appeared capable of sedentary to light range work and probably even better functional capacity, and stated that the Veteran "can stand and/or walk with breaks every 30 minutes, probably two hours or much more during a routine eight-hour day . . . [and] can sit six hours or more in an eight-hour day with breaks every two hours." He noted that the Veteran had mild limitation in pulling, mild to moderate limitation in climbing, and should avoid temperature extremes; but averred that the Veteran was frequently able to lift and carry 10 to 25 pounds; occasionally able to lift and carry 20 to 50 pounds; had no limitation in bending, stooping, crouching, kneeling, balancing, crawling, feeling, reaching, fingering, or handling; and had no visual or communicative impairment. In July 2008 the Veteran was accorded another C&P examination. The examiner reported that the claims file and medical records were reviewed. During the examination the Veteran complained of pain in the heels of both feet, and of occasional aching on the outside of his feet. He reported that his pain was mostly with weightbearing, but said that he also had aching pain when resting. He complained that standing and walking caused pain, and said that he used a cane. The examiner noted that the Veteran had had surgery on the right ankle, which the Veteran said "hurts all the time" at a pain level of about 8/10. He also complained of intermittent swelling and stiffness in the right ankle while seated. He averred that he was unable to walk much, but said that he drove cars and made deliveries twice a week. The examiner noted that the Veteran presented for examination with a cane. Physical examination found moderate antalgia, but the examiner remarked that the Veteran was able to walk unassisted. The examiner further reported as follows: He has bilateral pes planus. He has deformity of the right ankle with prominence of the medial malleolus. The posterior tibial pulses are 2+. Dorsalis pedis is 2+ and not felt on the right. However, there is no discoloration or gangrenous changes. There is tenderness over the medial aspect of both heels more on the right side. There is no other tenderness. There are no ulcers, no calluses, no edema, and no instability. Hallux valgus 20 degrees on the right side, 10 degrees on the left side. There are hammertoes mild, 2/4 bilaterally. Toe movements are not restricted. There is no thickening, tenderness or inflammation of the Achilles tendon. The alignment of the Achilles tendon is normal both in weightbearing and nonweightbearing. Right ankle: there is tenderness over the medial malleolus and there is significant deformity of the medial malleolus of the ankle. There is no evidence of inflammation. Dorsiflexion is 6 degrees and he complained of some pain. Plantar flexion is 20 degrees, inversion is 15 degrees and eversion is 10 degrees. Diagnoses were (1) bilateral pes planus, plantar fasciitis, hallux valgus, and hammer toes; and (2) post traumatic degenerative arthritis of the right ankle, post open reduction internal fixation. According to the examiner, the Veteran's bilateral foot pes planus and plantar fasciitis are at least as likely as not responsible for his inability to perform tasks that require standing or walking, but "purely based on his service-connected conditions, sedentary work is possible." According to the medical evidence of record above, the Veteran is able to perform sedentary work. Notwithstanding these medical opinions, however, consideration must be given to the Veteran's disability in the context of his employment and educational background. VanMeter v. Brown, 4 Vet. App. 477, 479 (1993); see also Vettese v. Brown, 7 Vet. App. 31, 34 (1994) (the Board must consider the subjective and individual factors that demonstrate the appellant's inability to secure substantially gainful employment, such as his occupational history and training). According to the Veteran, his last substantial gainful employment as a Supply Tech entailed "very long periods of standing, walking, and lifting of medical supplies and equipment." He also reported that his duties included "loading and unloading equipment, containers, and pushing carts weighing 50 to 200 pounds," and he reiterated that his job required "constant walking." Prior to that job, he worked as a baggage handler for an airline. As noted above, the U. S. Office of Personnel Management and the Social Security Administration both determined that the Veteran was unable to perform those tasks associated with current and former employment responsibilities. This is consistent with the Veteran's reports that his previous two jobs required long periods of standing, walking and lifting, as well as loading and unloading of heavy containers. The fact that the Veteran is no longer capable of employment in that capacity is not in dispute. The Veteran's prior jobs required manual labor, and the Veteran's service-connected disabilities of the feet severely limit his abilities in this regard. However, the record reflects that the Veteran has a college degree, and is therefore not so limited in his education as to be unable to secure employment in a sedentary capacity. A college degree, by its very nature, implies that the Veteran has enough of an educational background, as well as the ability to learn, such that it is not unreasonable to assume that someone with the Veteran's past employment history of manual labor-type jobs would be able to obtain employment in a sedentary-type setting. Because the Board lacks authority to award TDIU under § 4.16(b) in the first instance, the matter was remanded in July 2009 specifically for the rating board to submit to the Director, Compensation and Pension Service for extraschedular consideration, given that the Veteran's service-connected disability ratings fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). See 38 C.F.R § 4.16(b). In August 2009, the RO requested an administrative review of the record and extraschedular consideration with regard to the Veteran's TDIU claim by the Director of Compensation and Pension Service. In a November 2009 response, the Director of Compensation and Pension Service determined that the Veteran's service-connected disabilities did not meet the scheduler requirements for a TDIU and the evidence did not establish entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Significantly, there is a distinction between the Social Security Administration's determination regarding employability and VA's determination regarding employability in this case. First, SSA based its determination on all of the Veteran's disabilities, which include multiple additional nonservice connected disabilities not considered in the TDIU analysis. For example, the SSA determination lists a psychiatric disorder as an underlying secondary disability. Any psychiatric disability would most likely have a negative impact on all types of employment, including sedentary type work, but this psychiatric disability may not be considered in the TDIU analysis because it is not a service-connected disability. This is a significant distinction between the Veteran's SSA determination and the TDIU analysis. Additionally, the SSA records and the OPM determination rely heavily on the notion that the Veteran is not capable of continuing employment in the same capacity, and, as noted above, that is not in dispute here. Nevertheless, although the Social Security Administration and OPM have determined that the Veteran is no longer capable of employment in positions that require manual labor, the Veteran admittedly is able to operate a motor vehicle, cook, and do light house work. He has been assessed as being able to engage in sedentary employment. There is no indication that he has applied for sedentary jobs. There is also no indication that he has applied for such jobs and been turned down due to a service-connected disability or disabilities. Taking into consideration the Veteran's level of education and his service-connected disabilities of hemorrhoids rated at 10 percent disabling, and bilateral pes planus/plantar fasciitis rated as 50 percent disabling, but, without consideration of the Veteran's other, nonservice connected, orthopedic and psychiatric disabilities, the Veteran is employable in a sedentary capacity. While the Veteran's statements regarding his ability to work have been considered, the Board finds more probative the objective assessment that he is capable of sedentary work. The preponderance of the evidence is against the claim of entitlement to a TDIU; there is no doubt to be resolved; and a TDIU is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER A TDIU is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs