Citation Nr: 1643466 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 10-01 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from September 2000 to April 2002. This appeal arises to the Board of Veterans' Appeals (Board) from July 2003 and July 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which proposed to reduce, and then reduced, a schedular 100 percent left patella rating to 10 percent. The Veteran filed a notice of disagreement in November 2008 and was provided with a statement of the case in November 2009. The Veteran perfected his appeal with a December 2009 VA Form 9. The Veteran testified before a Decision Review Officer in November 2010 and before a Veterans Law Judge in August 2011. Copies of both transcripts are associated with the claims file. In a January 2012 decision, the Board denied the appeal for restoration of the previous 100 percent schedular rating for the Veteran's left knee disability and denied an increased rating for the Veteran's left knee disability. The Board also remanded the issue of entitlement to a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) for further development. During the course of the appeal, the Veterans Law Judge who conducted the August 2011 Board hearing retired from the Board. In November 2014, the Veteran indicated that he wanted a new hearing before another Veterans Law Judge concerning this issue. See 38 U.S.C.A. § 7107 (c) (West 2014). In a December 2014 decision, the Board remanded the appeal to afford the Veteran a Board hearing. In August 2016, the Veteran testified before the undersigned Veterans Law Judge and a copy of the hearing transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected disabilities do not render him incapable of securing or following a substantially gainful occupation, considering the impairment from the disorders and his educational and employment history. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3,102, 3.340, 3.341, 4.3, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Here, the notice requirements were accomplished by a letter sent in February 2013. The issue was then readjudicated in a July 2014 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, the Veteran's post-service VA treatment records have been associated with the claims file. The Board notes that the question of employability is ultimately one for the fact finder to decide, and not a medical provider. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Nonetheless, the Veteran was afforded VA examinations in June 2008 and February 2010. The Board finds that the examination reports, when taken together, are adequate because they describe the Veteran's service-connected disabilities in sufficient detail so that the Board's conclusion is an informed determination. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As previously noted, the Veteran was provided an opportunity to set forth his contentions during Board hearings in August 2011 and in August 2016. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearings. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Additionally, the Board finds that the RO has substantially complied with the January 2012 and December 2014 remand directives, which included providing the Veteran notice for a TDIU claim, obtaining any identified treatment records and referring the case to the Director of Compensation and Pension Service. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the Appeals Management Center (AMC) did not obtain the Veteran's VA Vocational Rehabilitation records as instructed by the January 2012 Board decision. However, as will be discussed below, the evidence of record shows that the Veteran is currently working. The evidence of record also shows that during the period in which the Veteran was not employed, his service-connected disabilities did not render him incapable of obtaining substantially gainful employment. As such, the Board finds that the Vocational Rehabilitation records would not provide additional evidence for deciding the claim. Therefore, an additional remand is not necessary. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis The Veteran contends that he is unemployable due to his service-connected low back disability. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a)(2015). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). The Board notes that the RO reduced the Veteran's service-connected left knee disability to 10 percent, effective October 1, 2008. Since October 1, 2008, the Veteran has been service connected for degenerative joint disease, left knee joint, status post-surgery fractured left patellar, rated as 10 percent disabling; chronic right knee sprain, degenerative arthritis, rated as noncompensable prior to October 2, 2008, and 10 percent thereafter; chronic right ankle sprain, rated as 10 percent disabling effective February 3, 2010; and scar, left knee, rated as noncompensable. Therefore, the Veteran's combined rating during the appeal period was 10 percent from October 1, 2008, 20 percent from October 2, 2008, and 30 percent since February 3, 2010, The Veteran, accordingly, does not meet the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), such case may be considered for extra-schedular consideration. The key determination, then, is whether the Veteran is unemployable. In this regards, a June 2008 VA examination shows that the Veteran reported having problems with prolonged standing for more than one hour at a stretch and prolonged walking for more than one and a half miles at a stretch. After physical examination, the examiner concluded that the Veteran's condition was not likely preventing him from doing his routine daily activities and sedentary jobs. In a December 2008 statement, the Veteran reported that some of his difficulties include squatting, going up and down stairs, standing or standing in one place or standing for a long period, sitting with legs bent at 90 degrees, getting in and out of vehicles, and bike riding. In a January 2009 statement, the Veteran's cousin reported that for hours at a time she has seen him sitting in one spot because of pain. She reported that it is so bad he cannot do everyday chores such as laundry or going up and down stairs. The Veteran's cousin also reported that employment is already hard to find and dealing with the pain of everyday movements and walking with a bad leg is considered a job to her. A January 2009 VA treatment record shows that the Veteran reported that he does not work or go to school. A June 2009 VA treatment record shows that the Veteran reported that he worked in labor related job. A February 2010 VA examination shows that the Veteran reported that activities such as prolonged standing, sitting more than one hour, prolonged walking of more than one mile and climbing more than one flight of stairs causes more pain. The Veteran reported that some activities cause more right knee pain. The Veteran reported that prolonged walking causes more pain in the right ankle. The Veteran also reported that he worked as a dish washer for about one month in 2004 after he came out of the service but was not working at the time of the VA examination. The examiner also noted that on psychiatric examination, the Veteran had normal behavior comprehension and coherence. He was well dressed. He was not psychotic and was competent to manage his financial matters. The examiner concluded that the Veteran's above medical conditions were not likely preventing him from doing his daily routine activities and sedentary jobs. At the August 2011 hearing, the Veteran testified that he was not working. The Veteran reported that his service-connected disability was the primary reason he was not able to find work. The Veteran testified that he was enrolled Specs Howard Graphic Design Media Arts School through the VA Vocational Rehabilitation program. The Veteran also reported that he had a diploma and a few trade certificates from high school. On his March 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, the Veteran reported that he last worked in 2003 and attended Specs Howard Graphic Design from March 2011 to August 2012. In a July 2014 decision, the Director of Compensation and Pension noted that the evidence shows that the Veteran is capable of performing daily routine activities and sedentary work. The Director noted that the Veteran has also successfully completed training under the Vocational Rehabilitation Program in the field of graphic arts. The Director concluded that therefore the evidence does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation due to his service connected disabilities. At the August 2016 Board hearing, the Veteran testified that since he left the military he has had three full-time jobs that he had to quit due to his legs. The Veteran reported that the jobs were manual labor. The Veteran reported that he has a high school degree, a year of college, a certificate in graphic design and a couple of college credits. The Veteran reported that in order to pursue a career in graphic design he would need more college credits. The Veteran reported that he does not remember if any doctor has told him that he cannot work due to his knee conditions. The Veteran reported that he is currently working making seats but it has been a struggle because of the hours. The Veteran reported that he works full time making seats for a manufacturing company. The Veteran reported that he gets paid $16 an hour and has been employed in this position for almost a year and a half and the position is permanent. The Veteran reported that when he stands too long at work he takes pain medication to get through the day. The Veteran denied any loss from the job or that he has fallen behind on the assembly line. The Veteran also denied that his employer had given him any concessions. Based on the above, the Board finds that the evidence of record is against a finding of entitlement to a TDIU. The Board has considered the determination provided by the Director of Compensation and Pension. However, the Board is not bound by the Director's decision. Wages v. McDonald, 27 Vet. App. 233 (2015). Nonetheless, the Board still finds that the Veteran's service connected left knee disability, alone or in combination with any of his other service-connected disabilities, does not render him incapable of securing or following a substantially gainful occupation. In regards to manual labor, the Board acknowledges that the Veteran's service-connected disabilities result in physical limitations. However, the Veteran is currently employed full time making car seats. Additionally, based on the Veteran's own testimony, this job requires the Veteran to stand for long periods of time. Nonetheless, the Veteran has been employed full-time for over two years making $16 per hour. The Veteran has also reported that he has not missed any time from work due to his physical limitations. The Veteran has reported that when he begins to have trouble standing he uses pain medication to get through the rest of the work day. Therefore, the Board finds that the Veteran is fully capable of performing the physical tasks required for gainful employment in manual labor. In regards to sedentary employment, the Board acknowledges that the Veteran has physical limitations when it comes to sitting for long periods of time. However, the evidence of record illustrates that he is fully capable of performing the physical and mental task required for gainful employment of a sedentary nature. The Veteran appears physically capable of sitting at a desk or similar work station, even if some breaks for shifting of positions would be required. The Veteran also has a high school diploma, some college, and several certificates. Additionally, as noted above, the Veteran is currently employed full-time, which illustrates the Veteran's disabilities do not prevent him from working with or under the supervision of others, or from interacting with the public. The evidence of record also illustrates that the Veteran has normal behavior comprehension and coherence. The Board acknowledges that the Veteran was unemployed during the appeal period and that he has reported that this was due to his service-connected disabilities. However, the criterion is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find someone to employ him. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board also notes that, the availability of employment in the job market, i.e., potential job openings, is not a factor for consideration in determining entitlement to a TDIU rating. See generally, Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011) (gives deference to the interpretation by VA's Adjudication Procedures Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, 2-F-12, which indicates that the "availability of work" is an "extraneous factor" that is irrelevant to a TDIU determination). In this case, the fact that the Veteran is currently employed in a full-time manual labor position and the Veteran is fully capable of performing the physical and mental task required for gainful employment, the Board finds it reasonable to conclude that the Veteran has been capable of obtaining gainful employment throughout the entire appeal period. Accordingly, the Veteran is not unemployable due to his service-connected disabilities, and hence TDIU entitlement is not warranted. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs