Citation Nr: 1231398 Decision Date: 09/12/12 Archive Date: 09/19/12 DOCKET NO. 09-13 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied increased ratings for chronic, recurrent urinary tract infections (UTIs), residuals of a total hysterectomy with bilateral salpingo-oophorectomy, a hysterectomy scar, and residuals of a bunionectomy of the right fifth toe; and entitlement to TDIU. In her February 2009 substantive appeal, the Veteran requested a local hearing before a member or members of the Board. That request was later withdrawn in May 2009. See 38 C.F.R. § 20.704(e) (2011). In September 2010, the Board denied increased ratings for residuals of a total hysterectomy and hysterectomy scar, and remanded the remaining claims for additional development. In April 2011, the Board denied increased ratings for chronic UTIs and residuals of a bunionectomy, and remanded the claim for TDIU for additional development. As the agency of original jurisdiction (AOJ), scheduled the Veteran for VA examinations and obtained the requested medical opinion, the Board finds that the AOJ has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected disabilities include chronic, recurrent UTIs, evaluated as 60 percent disabling; residuals of a total hysterectomy with bilateral salpingo-oophorectomy, evaluated as 50 percent disabling; residuals of a bunionectomy of the right little toe, evaluated as 10 percent disabling; and a hysterectomy scar, evaluated as 10 percent disabling; she has a combined rating of 80 percent. 2. The competent evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with the notice required under the VCAA in pre-rating letters dated in January and March 2008, and a post-rating letter dated in December 2010. The claim was readjudicated in a June 2012 supplemental statement of the case (SSOC). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's VA treatment records and obtained VA examinations in February 2008, and May and September 2011, and obtained a supplemental medical opinion is June 2012. For the reasons discussed below, these examinations, along with the June 2012 medical opinion, are adequate to make a determination on the claim for TDIU. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits. Legal Criteria Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2011). Furthermore, a total disability rating may be assigned where the combined rating for the a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. 38 C.F.R. §4.16(b). Analysis The Veteran asserts that she is unemployable as a result of her service-connected disabilities. She is current service-connected for four disabilities: chronic, recurrent urinary tract infections, evaluated as 60 percent disabling; residuals of a total hysterectomy with bilateral salpingo-oophorectomy, evaluated as 50 percent disabling; residuals of a bunionectomy of the right little toe, evaluated as 10 percent disabling; and a hysterectomy scar, evaluated as 10 percent disabling; she has a combined rating of 80 percent. In this case, the Veteran meets the preliminary schedular criteria for consideration for TDIU as outlined in 38 C.F.R. § 4.16(a). However, this remains the first step in establishing the basis for TDIU entitlement, as the evidence must further demonstrate not just that the Veteran is unemployable, but also that she is incapable of maintaining gainful employment as a consequence of one or more service-connected disabilities. In her January 2008 claim for compensation, the Veteran indicated that she last worked part-time in 2004 as a server at the Veterans of Foreign Wars of the United States (VFW) post. The Board notes that in January 2003, she indicated that she last worked full-time in May 1999 as a "room attendant" at a casino. In various statements throughout the course of the appeal, she has continued to allege that she unable to work. A review of the VA outpatient treatment records indicate that she reported that she was working on a degree in social work from Limestone College in February 2008. In August 2008, she reported increased urinary frequency since starting her "new job." Given these reports, the Board notes that is unclear whether the Veteran has been working during the appeal period and, if so, in what capacity. The Board finds, however, that a remand is not necessary to seek clarification. Here, the competent evidence clearly shows that the Veteran is not unemployable due to one or more of her service-connected disabilities. The report of a February 2008 genitourinary examination reflects that the Veteran's abdomen was soft and nontender to palpation. She had a linear scar measuring 21 centimeters in length with no outward keloid formation. The scar was flat. She reported some tenderness along the right edge on palpation. She reported that she wore Depends undergarments chronically and had episodes of urinary leakage that was extremely embarrassing for her. She also reported urinary tract infections that made her feel weak and tired, in addition to causing burning and irritative voiding symptoms, influencing her ability to go to a job. The examiner stated that she was "greatly debilitated." The report of a February 2008 VA feet examination reflects that the Veteran reported pain following a bunionectomy in 1976. She said the pain radiated out of the left side of her foot to the ankle. She said she could stand approximately 5 minutes and walk two blocks. On physical examination of the right foot, there were no corns, calluses, or erythema. The toes were intact and the arch was normal. There was pain on plantar flexion and dorsiflexion. Weight bearing was normal. X-rays showed a hypoplastic distal half of the proximal phalanx of the right fifth toe, which was noted to be an apparent developmental variant which was not clinically significant. There was very mild degenerative joint disease at the metatarsophalangeal joint of the great toe. Otherwise there were no abnormalities. In her June 2008 notice of disagreement (NOD), the Veteran complained of bowel and kidney problems, scar tissue from the hysterectomy, stomach problems, urinary incontinence, and foot pain. She said she had to use crutches because of pain in her knees, foot, back, and neck. She said was unable to hold a job because of her age and increasing health problems. An August 2008 VA urology note reflects that the Veteran had mixed incontinence for the past 10 years since her hysterectomy. She reported urinary frequency occurring twice per hour since starting a new job and nocturia 3 to 4 times with large volumes. She also reported incontinence with coughing, sneezing, laughter, and spontaneously. She said she used 6 pads per day. In October 2008, she reported urinary frequency with small volumes every 1 to 1.5 hours. She said that she changed pads 5 times per day. In December 2008, she reported voiding small volumes 10 times per day. In January 2009, she reported that urinary incontinence had improved, but had not resolved. She said she had stress incontinence occasionally. She said Ditropan helped with urinary frequency, but that it made her dizzy. She was changed to Detrol. In August 2009, it was noted that mixed incontinence had resolved. She had urinary frequency with slow stream every hour. A November 2008 VA urology note reflects that the Veteran reported a 20-year history of incontinence. It was noted that she underwent cystoscopy in 2008 that was not revealing. There was no evidence of cystocele or rectocele and no stress urinary incontinence. The bladder emptied well. She currently admitted to voiding small volumes every hour. She said that Pyridium helped her dysuria. A urine culture showed mixed flora. The following month, she complained of not feeling well and that it felt like her bladder was being torn out. She went to the emergency room and was diagnosed with a yeast infection. In a December 2010 statement, the Veteran said that her stomach scar was painful and sometimes "unbearable". She said that her UTI symptoms included "pain, weak, nausea, tiresome, problems walking, sleeping a lot, cannot eat, and not as mentally aware as [she] should be." She said that her right little toe had never been free of pain. A February 2011 VA outpatient record notes that the Veteran had been working in her garden and started itching, burning, and sneezing. The report of a May 2011 VA foot examination reflects that the Veteran reported that she had swelling in her entire foot and leg and was unable to walk at times. She said she used crutches. She related this all to her small toe on the right foot. She said that she had assistance devices (crutches) and was prescribed special shoes, but was not using crutches or wearing special shoes that day. On physical examination, there was no swelling. There was a well-healed scar over the lateral border of her small toe. She did not have a flat foot and had no instability or weakness. There were no corns or calluses. X-rays showed evidence of previous surgery of the right toe, but otherwise showed no significant arthritic changes. The examiner opined that she certainly did not believe that the Veteran's reported issues were related to surgery on her small toe. The examiner explained that the Veteran's small toe was well-positioned and would not cause any changes in her weightbearing or other continued symptoms. She did not have any calluses or corns over the small toe where this surgery occurred and did not have any problems with skin breakdown or anything of that nature. In July 2011, the Veteran reported that she was doing heavy yard work. She said she had a little pain in her ankle, but took some medicine and it went away. It was noted that she had been feeling fine for many months in spite of continuing yard work. A July 2011 urology note reflects that she had dysuria on and off, which was treated with Pyridium as needed. She complained of post void dribbling and slow urine flow. The impression was UTI, but a follow-up urine culture was negative. In January 2012, she complained of low back pain after gardening. She denied bowel/bladder incontinence. Later that month, she reported pain with urination and stated that her urine was very dark and had a strong smell. She was encouraged to increase her fluid intake. In February 2012, she complained of low back pain, but denied bowel/bladder dysfunction. Later that month, her physical therapist noted that she had an over-exaggerated perception of her low back pain. In March 2012, she returned to gardening and reported that she had 70 to 80 percent improvement. Later that month, during a pain consultation, she complained of shooting, sharp, cramping, aching, and sickening pain in her back. She reported increased urinary frequency with burning and blood. Her gait was normal and heal/toe walking was normal. The report of a September 2011 VA foot examination reflects that the Veteran had Morton's neuroma and decompression surgery in 2004. She reported that she had a bunionectomy of right little toe. It was noted that X-rays of the foot did not support the Veteran's claim that the toe was not connected. There was no osteoarthritis or degenerative joint disease of the fifth digit. The Veteran was noted to have metatarsalgia. It was noted that she occasionally used a cane. The examiner opined that that the Veteran's foot condition did not impact her ability to work. The report of the September 2011 gynecological examination reflects that the Veteran had a hysterectomy due to pelvic inflammatory disease. She reported urinary incontinence, specifically stress incontinence. The examiner indicated that her gynecological condition did not impact her ability to work. The report of a September 2011 kidney examination reflects an initial diagnosis of chronic cystitis. It was noted that the Veteran had been treated for UTI, but there was no clear evidence based on the urine culture results. It was noted that she took Pyridium as needed. The examiner opined that her kidney condition did not impact her ability to work. The examiner further opined that she did not believe the Veteran had chronic cystitis, which is defined by recurring UTI. It was noted that prior treatment was based on her subjective complaints and that clean catch urine specimens were not very clean, but there was no evidence of an UTI. In a separate report, the examiner explained that the clean catch specimens contained multiple contaminants and that it was unlikely that they actually were valid results. She noted that this was supported by multiple urine cultures which never grew out any bacteria and therefore were negative for conclusive UTI. It was noted that she had stress incontinence and changed absorbent materials 3 to 4 times per day. She said she got up night to void approximately 2 to 4 times. The examiner noted that a cystoscopy showed that the urethra was normal. In sum, the examiner opined that she did not believe that the Veteran had chronic cystitis, but that she may have dysuria on occasion which resolved with Pyridium. The report of the September 2011 VA scar examination reflects that the Veteran had a hysterectomy scar, which was described as linear and measuring 17 cm. No keloid was noted on the scar and the scar itself was nontender. There was an area 1 cm to the right of the lateral edge of the scar on the abdomen that was tender to palpation, but not the scar itself. The examiner opined that the scar did not impact the Veteran's ability to work. In June 2012, a VA physician reviewed the Veteran's claims file and provided a supplemental medical opinion. Relating to the right fifth toe, the examiner reviewed X-ray reports and noted that the toe aligned well with all the other toes and did not interfere with her ability to maintain gainful employment. The examiner also considered the Veteran's nonservice-connected Morton's neuroma and a right ankle sprain, but stated even if all three conditions of the right foot are considered, they do not prevent the ability to engage in gainful employment especially since the management of all three conditions could be satisfactory addressed with the wearing of an appropriate shoe. Regarding the residuals of a hysterectomy, the examiner noted that there was no evidence in the record that the hysterectomy and salpingo-oophorectomy (i.e., surgical menopause) limited the Veteran's ability to maintain gainful employment. The examiner also noted that the hysterectomy scar was found not to be painful and that there was no keloid formation. Therefore, the scar would not interfere with the ability to seek and maintain gainful employment. Regarding chronic UTIs, the examiner noted that the Veteran's most recent urology records indicated that her incontinence was stable and that she could go 2 to 3 hours without needing to urinate. The examiner indicated that this level of control would not impact her ability to manage any clerical or similar job. It would not interfere with her ability to obtain and maintain gainful employment. The Board notes that the examiner considered the totality of the Veteran's conditions, service and nonservice disabilities included, and opined that they, either alone or in concert, did not interfere with the Veteran's ability to seek and maintain gainful employment. In sum, the Board has reviewed the record and finds that the evidence does not support the Veteran's contention that her service-connected disabilities, in and of themselves, are of such severity as to preclude her participation in substantially gainful employment. To the extent that the competent medical evidence of record addresses employability, such evidence reflects that her service-connected disabilities do not impact her ability to work. This conclusion is further supported by the evidence that the Veteran attended college and reported starting a new job in 2008. The Board has also considered the Veteran's lay statements and notes that she is certainly competent to describe what she has personally experienced, including ongoing symptoms associated with her service-connected disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the Veteran has a tendency to exaggerate her symptoms during the course of seeking compensation benefits. For example, she described her hysterectomy scar as "unbearable," but it was found to be nontender on the most recent September 2011 VA examination. She has also described scar tissue and keloid formation, which was not present on examination. She has described having difficulty walking due to residuals of the bunionectomy and occasionally needing crutches, but was found to have a normal gait and normal heel/toe walk in March 2012. It is also well-documented that she continues to perform heavy yard work despite her numerous complaints of pain and urinary frequency and an inability to work. This is not to say that she does not have symptoms associated with her service-connected disabilities that may impact employment, but that the evidence does not show that she is unable to secure or follow a substantially gainful occupation. In this regard, the medical evidence is certainly more probative as this it involves a medical question that is the preserve of trained medical professionals, rather than a lay person such as the Veteran. On this type of question, the Veteran's lay contentions simply do not constitute competent evidence. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of TDIU. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs