Citation Nr: 1508329 Decision Date: 02/25/15 Archive Date: 03/11/15 DOCKET NO. 93-11 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This claim came before the Board in July 1997, February 2000, August 2003, June 2006 and September 2007. The September 2007 Board decision denied the Veteran's claims of entitlement to service connection for a low back disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left hip disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left knee disability, to include as secondary to a service-connected left ankle disability; and entitlement to TDIU. The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim for TDIU. The Court issued a December 2008 Order vacating, in part, the September 2007 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand. In August 2009, the Board, and in conjunction with the parties' Joint Motion for Remand and the Court's Order, remanded the TDIU claim for additional development. In May 2012, the Board again remanded the matter of entitlement to a TDIU for additional development. The case has since returned to the Board for the purposes of appellate disposition. For the reasons stated below, the Agency of Original Jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the matters of entitlement to a rating in excess of 20 percent for residuals of a fracture of the left fibula as well as applications to reopen the claims for service connection for low back, lip hip, and left knee disabilities for issuance of a Statement of the Case, consistent with Manlicon v. West, 12 Vet. App. 238 (1999). In December 2013, the AOJ issued the Statement of the Case pertaining to these issues, and they were addressed again in a June 2014 Supplemental Statement of the Case. However, a VA Form 9, Substantive Appeal, is not of record. Accordingly, these matters are not before the Board. A review of the Veteran's electronic claims file reveals a copy of a February 2014 VA examination report relevant to the current appeal. These records had been reviewed by the AOJ and the Board in conjunction with the appeal. FINDINGS OF FACT 1. The Veteran is service-connected for residuals of a left fibula fracture (rated as 20 percent disabling) and hepatitis C (rated as 10 percent disabling); his combined rating is 30 percent. 2. The Veteran's service-connected disabilities do not render him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the Veteran's claim was received and adjudicated prior to the enactment of the VCAA. In a March 2002 post-rating letter the RO notified the Veteran of the evidence needed to substantiate the claim for TDIU. The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in a March 2006 letter. As regards the timing of this notice, the claim was readjudicated on numerous occasions and most recently in a June 2014 Supplemental Statement of the Case, thereby curing any timing deficiency. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private treatment records, as well as the Veteran's Social Security Administration (SSA) records. The Veteran was also afforded a number of VA examinations to assess the severity of his service-connected disabilities and their impact on his employability, including most recently in February 2014, pursuant to the Board's May 2012 remand instructions. As this examination report reflects that the examiner took a history from the Veteran, performed a physical examination, and provided rationale for all conclusions reached, the Board finds that this examination is adequate for adjudication purposes and complies with the Board's remand instructions in this regards. Stegall, 11 Vet. App. at 271. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The evidence shows that the Veteran is currently service connected for residuals of a left fibula fracture (rated as 20 percent disabling from August 28, 2008 and as 10 percent disabling prior to that date) and hepatitis C (rated as 10 percent disabling from October 10, 2000); his combined rating is 10 percent prior to October 10, 2000, 20 percent from October 10, 2000, and 30 percent from August 28, 2008. Hence, at no point relevant to this appeal has the Veteran met the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a). However, a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). Hence, consideration of whether the Veteran, in fact, is unemployable is still necessary in this case. In various written statements, the Veteran has expressed that he is unable to work due to the cumulative effects of his service-connected disabilities. He has generally stated that his service-connected left ankle disability is responsible for his left foot drop and further problems with his left knee, hip and back. At the outset, the Board notes that, in Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. On a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in October 1995, the Veteran reported that he last worked in 1985 for General Motors. He noted that he was put on disability because his service-connected injury worsened. He reported that he was subsequently medically retired and granted Social Security Disability benefits. Various treatment record document diagnosis and treatment of left knee disability, status post arthroscopy, hernia, coronary artery disease, status-post myocardial infarction, hypertension, leukemia, splenectomy, intermittent bronchial asthma, left foot drop, and lumbar spine degenerative disc disease. The Board notes that treatment records around the time the Veteran took medical disability in 1985 reflect a variety of physical complaints, including low back, left foot, and left ankle problems. A November 1984 medical disability report reflects diagnoses of old injury of the left ankle with residual equinus contracture and muscle weakness of the left lower leg, chronic lumbosacral strain, and possible herniated disc causing restrictions on walking and standing. A January 1987 report from private physician Dr. B. pertaining to the Veteran's disability determination reflects that the Veteran could not stand for more than a few minutes and could only walk short distances. It was noted that the Veteran had a history of compound fracture of the left foot and left foot drop. On General Motor's Application for Total and Permanent Disability Benefits filed in October 1992, the Veteran reported that he had undergone physical therapy on the back 3 times, and that he had therapy on the left leg every month since 1985. A physician's statement from Dr. B. accompanying this application noted that the Veteran's complaints included pain in the left ankle and subtalar joints and lack of muscle power. It was noted that the Veteran hurt his foot while working in September 1985. It was aggravated because the doctor's restrictions were not honored and more complications set in. The examiner diagnosed drop foot, traumatic and degenerative arthritis of the left lower extremity. SSA records reflect that the Veteran has been awarded disability benefits based primarily on his disabilities of the lower extremities and low back. He was found to qualify for benefits in September 1995 after initially being denied benefits. That decision report indicates that the Veteran was found to have severe disability including degenerative joint disease, degenerative disc disease, and left foot drop. A November 1996 VA examination report reflects that, as far as the fibula injury was concerned, there was no residual at that time and the functional loss as complained by the Veteran was subjective. The examiner noted that the movements seemed to be voluntarily resisted. An October 2005 VA examiner opined that the Veteran's service-connected left ankle injury did not prevent him from performing substantially gainful employment. The Veteran was also afforded a VA general medical examination in October 2005, at which time the Veteran reported that he had been diagnosed with hepatitis C about 8 or 9 years prior and said he received some tablets for about one month. He could not give any current details of his treatment for hepatitis C. He had no recent jaundice or history suggestive of cirrhosis of the liver or hepatocellular failure. He had not had frequent hospitalization for management of chronic liver problems. He did endorse chronic fatigue and noted that he could not climb more than 2 to 3 flights of stairs at a time. The examiner diagnosed hepatitis C infection. The examiner determined that the Veteran's medical problems of hepatitis C, intermittent bronchial asthma, coronary artery disease, and hypertension likely did not prevent him from performing his routine daily activities and duties of general employment. On VA examination in August 2009, the examiner concluded after physical examination and x-ray that the Veteran's left ankle ligament laxity was not a deterrent to employability. She noted that there was no soft tissue swelling or bony fracture, and the Veteran was able to secure and follow substantially gainful employment. With respect to hepatitis C, the examiner noted that there was no laboratory finding of hepatitis C. By his own history, he had not been treated for hepatitis C. On April 2011 VA examination pertaining to the Veteran's hepatitis C, the Veteran reported that he was not on any medication for hepatitis C. He had not had any incapacitating episodes in the previous 12 month period. There were no signs of liver disease and an abdominal examination was normal. There was no laboratory evidence of hepatitis C. The examiner concluded that the disability caused no effects on daily activities and did not prevent the Veteran from employment. An April 2011 VA orthopedic examination report reflects the examiner's opinion that the Veteran's left ankle ligament laxity was not a deterrent to employability. There was no soft tissue swelling or bony abnormality. He found that the Veteran would be able to obtain and maintain substantially gainful employment. The examiner also determined that the Veteran had bilateral sensory motor axonal polyneuropathy of the lower extremities, most likely due to chemotherapy for leukemia, or possibly idiopathic. As the neuropathy was occurring bilaterally certainly, he found to be certainly not related to his service connected old, well-healed left tibia fracture. On VA examination in February 2014, the examiner noted that, with respect to the service-connected hepatitis C, the Veteran did not have signs or symptoms attributable to a chronic or infectious liver disease. He also had not any incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, and right upper quadrant pain. He was not a liver transplant candidate and did not have liver injury. The examiner indicated that she conducted relevant laboratory studies. She noted that chronic hepatitis C serologies revealed no evidence of hepatitis C. The examiner determined that the service-connected hepatitis C did not render him unable to seek and maintain substantially gainful employment. She noted that, per the Veteran's own statement, he had never been treated for hepatitis C, and was not on medication for hepatitis C. The Veteran's left ankle disability was also examined in February 2014. The Veteran reported that he jumped out of a helicopter and broke his ankle in service. He was put in a walking cast. After service, the Veteran was able to work at General Motors for 23 years, retiring in 1992. He stated that he had not worked since 1992 and was put on disability by General Motors for the left foot, knee, hip, and lumbar spine. The examiner noted that the Veteran used a brace for left foot drop, and he also used a cane for balance. The examiner indicated that she could find no evidence to substantiate that the cane was required and prescribed for locomotion and functional mobility. After complete physical examination, the examiner diagnosed old fracture of the left fibula, well-healed with no residual functional deficit. An x-ray was noted to be normal. The examiner determined that the Veteran's left ankle did not render him unable to seek and maintain gainful employment. In providing the requested opinion, the examiner noted that she reviewed the entire claims file. She also indicated that a clinical exam does not evidence any limitation due to pain, weakness, fatigability or incoordination when the joint is used repeatedly over a period of time. The Veteran did not report any flare-ups. She further indicated that the Veteran was not medically discharged from the military and was able to work at General Motors for 16 years after his discharge form the military. The Veteran stated that he was medically retired from General Motors in 1992, 20 years after his discharge form the military, due to multiple conditions including left foot, left knee left hip and lumbar spine. The examiner also noted that she reviewed previous VA examinations pertinent to the left ankle. She found that noted that on examination in November 1996, the VA orthopedic examiner opined that the Veteran had no current residuals of left ankle injury. A July 1998, VA Orthopedic consult reported, "no objective basis to find any current impairment due to Veteran's history of left fibula fracture." A July, 1998 VA Neurological exam reported findings suggesting a partial mild left peroneal nerve neuropathy that had not been substantiated by EMG findings. An October 2005 VA Orthopedic Exam showed a normal physical exam and x-rays within normal limits with dorsiflexion of left ankle to 25 degrees and plantar flexion to 45 degrees. He diagnosed a normal left ankle. The Board acknowledges the Veteran's left ankle disability has been productive of pain and limitation of motion and that his hepatitis C has productive of symptoms such as fatigue. However, while his hepatitis C and left ankle disability may interfere with some aspects of his employment, any schedular rating implies some degree of interference with employment. The evidence in this case does not demonstrate an inability to engage in substantially gainful employment due to service-connected disabilities, alone. Rather, the record reflects that the Veteran stopped working due to physical disability related to his ankle, left foot, lumbar spine and other musculoskeletal complaints. The Board is mindful that throughout this appeal the Veteran has been unemployed and that he stopped working in 1985 and was medically retired in 1992. However, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the more probative evidence is against the claim. The Board has afforded great probative value to the opinions of the VA medical professionals, who examined the Veteran and reviewed the claims folders. Per the Veteran's own statements and the VA examiners, the Veteran's inability to maintain employment has been attributed to non-service related factors, namely his lumbar spine disability and left foot drop. In particular, the February 2014 VA examiner determined that the Veteran's hepatitis C was not productive of any occupational impairment, given that the Veteran denied treatment for the condition and laboratory findings did not substantiate the diagnosis. She further determined after physical examination and review of the claims file that the residuals of a left fibula fracture did not prevent the Veteran from employment. In so finding, she discussed pertinent past and contemporaneous physical findings noting no residual impairment related to the ankle. Finally, to the extent to which SSA found the Veteran to be unemployable, the Board notes that decisions of the Social Security Administration regarding disability, while relevant, are not controlling with respect to VA determinations, particularly as adjudication of VA and Social Security claims are based on different laws and regulations. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In this case, the Board finds it significant that SSA considered the effect of the non-service-connected lumbar spine disability and left foot drop, in coming to their conclusion. The Veteran has submitted a number of treatment records and medical opinions attempting to establish a connection between the service-connected left ankle disability, left knee, left foot drop, left hip and back disabilities. He has argued that his service-connected left ankle disability, in essence, encompasses the left foot drop. The Board notes, however, that he has been denied service connection for these disabilities, and was most recently denied service connection for left foot drop in June 2014. Accordingly, as these disabilities are not service-connected, they are not for consideration in evaluation of whether a TDIU rating is warranted. While the Veteran has offered general contentions that he is not employable due to his service-connected disabilities, the Board finds the probative weight of these lay assertions to be less than that of the VA medical opinions, in particular, that of the February 2014 VA examiner which have described the Veteran's service-connected disabilities as not productive of significant functional impairment, and other evidence suggesting the Veteran's unemployment due to a variety of other non-service-connected disabilities. In the absence of probative evidence to the contrary, other than the Veteran's own contentions, a TDIU must be denied by the Board. In sum, the Board finds that the Veteran does not meet the criteria for schedular TDIU and that his service connected disabilities do not preclude substantially gainful employment. Therefore, a grant of TDIU is not warranted. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs