Citation Nr: 0810060 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 99-15 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from January 1948 to February 1950, and from August 1950 to July 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 1998 and November 1999 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2007). The Board notes that the veteran initially requested a hearing in connection with this claim, but withdrew the request in written correspondence dated in September 2002. See 38 C.F.R. § 20.704(d) (2007). This issue was remanded by the Board in an action dated in April 2007 in order to provide the veteran with a VA medical examination seeking a medical opinion as to whether he is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities, and to have the agency of original jurisdiction (AOJ) readjudicate the claim in light of ratings increases previously awarded. FINDINGS OF FACT 1. The veteran is service connected for six disabilities, two of which are rated as 40 percent disabling; the disabilities have been combined by the AOJ to a 90 percent disability rating. 2. The veteran's service-connected disabilities do not combine to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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 ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure[] the error in the timing of notice"). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in February and March 2004, and February 2005. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to award of TDIU, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran submit any evidence he had pertaining to his claim. Though not necessarily relevant to a TDIU claim, the veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided a statement of the case (SOC) and two supplemental statements of the case (SSOCs) reporting the results of its reviews of issues on appeal and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), and VA and private medical records, and secured examinations in furtherance of his claim. VA has no duty to inform or assist that was unmet. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2007). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (2007) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the veteran, an unemployed 79-year-old truck driver, is currently service-connected for left and right foot peripheral neuropathy, each rated as 40 percent disabling; for bilateral frostbite of the feet, each rated as 30 percent disabling; a nontender scar, rated as 10 percent disabling; and for varicose veins of the right leg, rated as non- compensably (zero percent) disabling. The veteran's service- connected disabilities have been combined by the AOJ to a 90 percent disability rating. Thus, the veteran meets the requirement for being rated at 70 percent or more for two or more service-connected disabilities, with at least one disability rated at least at 40 percent. However, as noted, in addition to the mathematical calculation that permits award of TDIU in accordance with 38 C.F.R. § 4.16, total disability cannot be considered to exist unless there is also service-connected impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability(ies), is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. Moreover, as already noted, an inability to work due to non-service- connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. As noted, on remand the veteran was afforded a VA medical examination to determine the extent of his disabilities, and to obtain a medical opinion as to whether the veteran, because of service-connected disabilities only-without taking into account non-service-connected disabilities or age-is incapable of performing the physical and mental acts required by employment. The examination, conducted in May 2007, recounted the veteran's current service-connected and non-service-connected disabilities. In addition to the service-connected disabilities listed previously, the examiner noted that the veteran was determined to be suffering from dementia based on a neuropsychological examination given in July 2001. The examiner noted that the veteran's service-connected peripheral neuropathy of the lower extremities caused pain and decreased ability to ambulate safely. The examiner noted that the veteran had recently suffered a fall with injury to the right foot. Prior to that, he had been using a cane. He related that he receives assistance from grandchildren and a daughter-in-law in accomplishing many of the daily tasks such as housekeeping, laundry, and meal preparation. On examination, the examiner found that muscle tone was normal in all four extremities, and strength was 5/5 throughout. There was no muscle atrophy or fasciculations noted. The veteran was wearing a brace on his right foot which he stated was related to he recent fall. Sensory examination showed reduced discrimination of the pinprick sensation below the knees to the feet, and reduced vibration sensation over the shins and ankles. The veteran would not attempt gait evaluation because of the non-weight bearing status resulting from his recent injury. Reflexes were 2+ at the knees bilaterally and 2+ at the ankles. Plantar reflexes were normal. Sensory examination in the hands and upper extremities was normal. In response to the Board's specific question, the examiner opined that the veteran should not be unemployable based solely on his enumerated service-connected disabilities. In support of this conclusion the examiner noted that the veteran can get a job where he does not have to be standing for long periods of time or lifting heavy weight, which activities would be hindered by his peripheral neuropathy. Taking into account all of the evidence of record, and relying on the medical opinion of the May 2007 VA examiner that the veteran should not be considered unemployable based solely on his service-connected disabilities, the Board finds that the evidence does not warrant award of TDIU. While the veteran does meet the requirement that he be rated at 70 percent for two or more service-connected disabilities with at least one disability rated at least at 40 percent, the evidence does not demonstrate that he is unable to secure or follow a substantially gainful occupation solely as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board does not doubt that the veteran's service-connected disabilities may preclude continued employment in his chosen field as a truck driver. However, as noted, the ultimate question is whether the veteran, because of service-connected disability(ies), is incapable of performing the physical and mental acts required by employment, not whether he can find employment, not because he is incapable of performing the tasks of his chosen career, and not because of his age. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this claim. A total rating based on unemployability therefore is not warranted. ORDER Entitlement to a total rating based on individual employability due to service-connected disability is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs