Citation Nr: 0812230 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-05 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). (The issue of entitlement to service connection for a psychiatric disorder, claimed as secondary to a service- connected headache disorder, is the subject of a separate decision of the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1966 to March 1968. This matter is before the Board on appeal from a March 2004 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in April 2007 when it was remanded for additional development. FINDINGS OF FACT 1. The veteran's only service-connected disabilities, deformity of the nose, deviated septum, secondary to fracture, rated 10 percent and cephalgia, secondary to nasal injury, rated 50 percent, are rated 60 percent combined, and share a common etiology. 2. The veteran's service-connected disabilities are not shown to be of such nature and severity as to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The schedular requirements for TDIU are met; however, a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.10, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the matter being addressed. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper 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 or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the issue decided herein, the veteran has been advised of VA's duties to notify and assist in the development of his claim by letters dated in June 2005 and July 2007. Although he was provided complete VCAA notice subsequent to the March 2004 rating decision appealed, he is not prejudiced by such notice timing defect. The June 2005 and July 2007 letters from the RO explained what the evidence needed to show to substantiate the claim. They also explained that VA was responsible for obtaining relevant records from any federal agency, and would make reasonable efforts to obtain records not held by a federal agency, but that it was the veteran's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. The veteran was also advised to submit any pertinent evidence in his possession. The July 2007 letter provided notice regarding ratings and effective dates of awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was given ample time to respond to these letters or supplement the record. The claim was re- adjudicated after all essential notice was given. See December 2007 supplemental statement of the case (SSOC). The veteran is not prejudiced in this decision by any technical notice timing or content defect that may have occurred along the way, nor has it been so alleged. Regarding VA's duty to assist, all appropriate development to obtain the veteran's pertinent medical records has been completed. All available, pertinent post-service treatment records have been obtained, and all evidence constructively of record (VA medical records) has been secured. The RO arranged for a VA examination in April 2003. The veteran has not identified any pertinent evidence that remains outstanding. The Board is satisfied that evidentiary development is complete. VA's duties to notify and assist are met; accordingly, the Board will address the merits of the claim. II. Factual Background Historically, an October 1972 rating decision awarded the veteran service connection for deformity of the nose, deviated septum, secondary to fracture, rated 10 percent, and cephalgia, secondary to nasal injury, rated 10 percent. By rating decision in December 1975, the veteran was awarded an increased, 30 percent, rating for the cephalgia. A May 1981 rating decision further increased the rating for cephalgia to 50 percent. In July 2002, the veteran submitted a claim for TDIU, wherein he indicated that he had last worked as coal miner in 1978, but had to stop working because of residuals of a head injury. He also indicated that he had completed two years of high school. Records from the Social Security Administration (SSA) show that the veteran was found disabled, effective January 1978, based on the following disabilities: degenerative disc disease L4-L5; anxiety neurosis; septal deviation; conversion reaction; cerebralvascular accident; diabetes mellitus; asthmatic bronchitis; an old thrombosis in the right upper extremity; depression; and thrombophlebitis of the right lower leg. An April 2003 VA examination report notes the veteran's history of migraine headaches and an old nasal fracture. Currently, his complaints included "bad migraines" which lingered for several days and bleeding and crusting out of both sides of his nose. He also complained of arthritis of the knees and back, and chronic obstructive pulmonary disease. The examiner opined: It is more likely than not that the veteran's migraine headaches and facial problems . . . would of themselves not cause the veteran to be unemployed. The (SSA) determination for unemployment contained many other factors . . . . Considering only his service connected disability problems, he should be able to be employed. In a July 2004 letter, the veteran's private physician noted that he was treating the veteran for atherosclerotic heart disease, degenerative arthritis, frequent migraine headaches and anxiety disorder. He also noted that the veteran was legally blind in one eye due to glaucoma, which was affecting the other eye as well. He opined that the veteran "is permanently and totally disabled and unable to engage in any gainful employment." III. Case Law, Regulations and Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 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. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the veteran's non-service-connected disabilities on his ability to function. The veteran's service-connected disabilities and respective ratings are: cephalgia, secondary to nasal injury, 50 percent; and deformity of the nose, deviated septum, secondary to fracture, 10 percent. The combined rating for these disabilities is 60 percent. 38 C.F.R. § 4.25. Because the service-connected disabilities share common etiology (an injury resulting in nasal fracture), they are considered as one disability (see 38 C.F.R. § 4.16(a)) rated as 60 percent. Accordingly, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are met. To establish entitlement to TDIU, however, it must also be shown that, due to the service-connected disabilities alone, the veteran is unable to obtain or pursue substantially gainful employment. The competent (medical) evidence of record does not show that the veteran's service-connected disabilities alone prevent him from participating in all forms of regular substantially gainful employment. The Board has carefully considered both the SSA determination and the July 2004 private medical opinion to the effect that the veteran is unemployable due to his disabilities. However, both the SSA determination and the private physician found that the veteran cannot work based on consideration of quite substantial nonservice-connected disorders (ophthalmologic, cardiovascular/vascular, orthopedic, and psychiatric) as well as the service-connected cephalgia and deformity of the nose with deviated nasal septum. The private physician does not indicate that the veteran's service-connected disorders alone prevent him from maintaining employment. Conversely, in an April 2003 opinion, a VA examiner who examined the veteran thoroughly, and whose discussion reflects familiarity with the claims file, stated that the veteran is not unemployable due to his service-connected disabilities alone. Because this opinion responds to the specific question that must be addressed in this determination, and is accompanied by a detailed explanation of the rationale, the Board finds it probative and persuasive. There is no other medical opinions to the contrary. The fact that the veteran is currently unemployed does not support the conclusion that he is unemployable due solely to his service-connected disorders. For reasons noted above, the more probative evidence establishes that the veteran is not totally disabled for any substantially gainful employment due to his service-connected disabilities, alone. Accordingly, the preponderance of the evidence is against his claim for TIDU (and the doctrine of resolving reasonable doubt in a claimant's favor does not apply). ORDER A TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs