Citation Nr: 0812355	
Decision Date: 04/14/08    Archive Date: 05/01/08

DOCKET NO.  02-10 010A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri




THE ISSUE

Entitlement to a total rating for compensation purposes based 
on individual unemployability due to service-connected 
disabilities (TDIU).




ATTORNEY FOR THE BOARD

J. Connolly Jevtich, Counsel







INTRODUCTION

The veteran served on active duty from October 1951 to 
September 1961.

This matter initially came before the Board of Veterans' 
Appeals (Board) on appeal from rating decisions dated in 
December 2000, April 2002, and March 2005 by the Department 
of Veterans Affairs (VA) Regional Office in St. Louis, 
Missouri (RO).

In a September 2003 decision, the Board granted an increased 
rating to 30 percent for the veteran's residuals of a left 
upper deltoid wound.  The Board also remanded the issues 
involving increased ratings for residuals of a fracture to 
the right 5th finger, residuals of a fracture to the right 
3rd and 4th metacarpals, PTSD, hemorrhoids, and a TDIU.

The veteran appealed that decision to the U.S. Court of 
Appeals for Veterans Claims (Court) with respect to the grant 
of a 30 percent rating for his residuals of a left upper 
deltoid wound.  In a January 2004 order, the Court vacated 
the Board's decision and remanded the matter back to the 
Board for development consistent with the parties' Joint 
Motion for Partial Remand (Joint Motion).

The Board remanded the case in October 2004 with instructions 
that the RO schedule the veteran for an appropriate VA 
examination to determine the severity of his residuals of a 
left upper deltoid wound and to determine whether a separate 
rating is warranted for the veteran's scar.  Meanwhile, the 
RO continued to deny increased ratings for the remaining 
issues the Board had remanded to the RO in September 2003.

In a March 2005 rating decision, the RO granted service 
connection and assigned a 10 percent rating for a scar of the 
left upper deltoid, effective August 11, 2000.  The veteran 
appealed that decision with respect to both the assigned 
rating and the effective date.

In a January 2007 decision, the Board denied increased 
ratings for residuals of a fracture to the right 5th 
metacarpal; PTSD; hemorrhoids; residuals of a left upper 
deltoid wound; and for a scar of the left upper deltoid.  In 
addition, the Board denied an effective date prior to August 
11, 2000, for the grant of service connection for a scar of 
the left upper deltoid.  In the Remand portion of that 
decision, the Board pointed out that the RO had previously 
adjudicated the issue of an increased rating for residuals of 
a fracture of the third and fourth metacarpals of the right 
hand.  However, the veteran was not service-connected for 
residuals of a fracture of the third and fourth metacarpals 
of the right hand, he was service connected for residuals of 
a fracture of the third and fourth metacarpals of the left 
hand.  Thus, that matter was referred to the RO for initial 
adjudication.  The matter of a TDIU was also remanded.  In a 
December 2007 rating decision, an increased rating was denied 
for residuals of a fracture of the third and fourth 
metacarpals of the left hand.  That was the initial 
adjudication of that issue; thus, the veteran must perfect an 
appeal if he does not agree with the RO determination that an 
increased rating is not warranted.  In a December 2007 
letter, the veteran was notified that his claim had been 
denied.  Although the veteran was provided his procedural and 
appellate rights, it is unclear if he is aware that the issue 
of an increased rating has not been perfected and is not in 
appellate status.  The veteran is hereby advised that he must 
appeal the December 2007 denial if he does not agree with 
that determination.  He should refer to the VA Form 4107 
which he was provided and may submit a notice of disagreement 
if he so chooses.  


FINDING OF FACT

The veteran's service-connected disabilities do not prevent 
him from securing and following substantially gainful 
employment.


CONCLUSION OF LAW

The criteria for entitlement to TDIU have not been met.  38 
U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.16 
(2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the claimant's claim, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 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. 

VCAA letters were sent in October 2002 and April 2005 which 
fully satisfied the duty to notify provisions.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 
16 Vet. App. 183, 187 (2002).  The claimant was aware that it 
was ultimately the claimant's responsibility to give VA any 
evidence pertaining to the claim.  The letters told the 
claimant to provide any relevant evidence in the claimant's 
possession.  See Pelegrini v. Principi, 18 Vet. App. 112, 
120-21 (2004) (Pelegrini II).  Although the notification 
letters were not sent prior to the initial adjudication of 
the claimant's claim, this was not prejudicial to the 
claimant since the claimant was subsequently provided 
adequate notice, the claim was readjudicated, and a statement 
of the case (SOC) and additional supplemental statements of 
the case (SSOC) were provided, the last one dated in December 
2007.  If there is VCAA deficiency, i.e., VCAA error, this 
error is presumed prejudicial to the claimant.  VA may rebut 
this presumption by establishing that the error was not 
prejudicial.  See Sanders v. Nicholson, 487 F. 3d 881 (2007); 
see also Simmons v. Nicholson, 487 F. 3d 892 (2007).  In 
Sanders, the claimant was allowed a meaningful opportunity to 
participate in the adjudication of the claim and the 
essential fairness of the adjudication process was not 
affected.  The claimant was provided VCAA notification and 
had knowledge in that regard.  As further noted below, VA has 
obtained all relevant evidence.  Thus, even though the 
initial VCAA notice came after the initial adjudication, 
there is no prejudice to the claimant.  In any event, the 
Board finds that any deficiency in the notice to the claimant 
or the timing of these notices is harmless error.  See 
Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding 
that the Board erred by relying on various post-decisional 
documents to conclude that adequate 38 U.S.C.A. § 5103(a) 
notice had been provided to the claimant, the Court found 
that the evidence established that the claimant was afforded 
a meaningful opportunity to participate in the adjudication 
of the claim, and found that the error was harmless, as the 
Board has done in this case.)  

According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), 
for an increased-compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Further, if the 
diagnostic code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant diagnostic codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability. 

In this case, the claim is for TDIU, not an increased rating 
under a diagnostic code per se, however, in considering TDIU, 
the Board implicitly considers whether the veteran has been 
assigned the appropriate ratings for his service-connected 
disabilities.  Inasmuch as this is the case, a TDIU award is 
an award of increased disability compensation.  See generally 
Wood v. Derwinski, 1 Vet. App. 367, 369 (1991).  

In this case, while the VCAA notice letters were not 
compliant with the directives in Vazquez-Flores, the Board 
finds that any deficiency in the VCAA notice was harmless 
error.  In this regard, the claimant was provided pertinent 
information in the December 2007 correspondence.  Further, 
the VCAA notices along with the SOC and SSOCs provided 
additional information to the claimant which complies with 
Vazquez-Flores.  Cumulatively, the veteran was informed of 
the necessity of providing on his own or by VA, medical or 
lay evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has 
on the claimant's employment and daily life.  In the December 
2007, the section entitled "Disability Rating," 
specifically cited to the impact on employment and described 
the types of evidence which would support the claim.  The 
claimant was also told that disability ratings range from 
zero to 100 percent based on the nature of the symptoms of 
the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment.  The nature of the TDIU claim is whether the 
veteran's service-connected disabilities render the veteran 
unemployable and the SOC and SSOCs were relevant to this 
matter.  Therefore, the Board finds that the claimant has not 
been prejudiced by insufficient notice in this case.  

The veteran's pertinent medical records have been obtained, 
to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159.  There is no indication in the record that any 
additional evidence, relevant to the issue decided herein, is 
available and not part of the claims file.  VA attempted to 
obtain Social Security Administration (SSA) records, but was 
informed that there were no records available pertinent to 
this claimant.  The claimant has been afforded VA 
examinations to determine the impact of his service-connected 
disabilities upon employment.  There is no objective evidence 
indicating that there has been a material change in the 
service-connected disabilities since the claimant was last 
examined.  38 C.F.R. § 3.327(a).  

The duty to assist does not require that a claim be remanded 
solely because of the passage of time since an otherwise 
adequate VA examination was conducted.  See VAOPGCPREC 11-95.  
The VA examination reports are thorough and supported by VA 
outpatient treatment records.  The examination in this case 
is adequate upon which to base a decision.  The records 
satisfy 38 C.F.R. § 3.326.

In sum, the claimant was provided the information necessary 
such that any defective predecisional notice error was 
rendered non-prejudicial in terms of the essential fairness 
of the adjudication.  As noted, the SOC, SSOC, VCAA notices, 
and the December 2007 correspondence furnished the necessary 
additional notification to the claimant with regard to his 
claim.  

Thus, the Board finds even if there was VCAA deficiency, the 
evidence of record is sufficient to rebut this presumption of 
prejudice as the record shows that this error was not 
prejudicial to the claimant and the essential fairness of the 
adjudication process in this case was preserved.  

As there is no indication that any failure on the part of VA 
to provide additional notice of assistance reasonably affects 
the outcome of this case, the Board finds that such failure 
is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  


TDIU

Total disability ratings for compensation purposes may be 
assigned when the schedular rating for service-connected 
disabilities is less than 100 percent, when it is found that 
those disabilities are sufficient to produce unemployability 
without regard to advancing age.  If unemployability is the 
result of a single service-connected disability, that 
disability must be rated at 60 percent or more.  If it is the 
result of two or more service-connected disabilities, at 
least one must be ratable at 40 percent or more, with the 
others sufficient to bring the combined rating to 70 percent 
or more.  For the purpose of one 60 percent or one 40 percent 
disability in combination, disabilities resulting from a 
common etiology or a single accident will be considered as 
one disability.  38 C.F.R. § 4.16(a).

The veteran is service-connected for post-traumatic stress 
disorder (PTSD), rated as 30 percent disabling; residuals of 
a wound to the left upper deltoid, rated as 30 percent 
disabling; a scar of the left upper deltoid, rated as 10 
percent disabling; residuals of a fracture to the right 5th 
finger, rated as 10 percent disabling; hemorrhoids, rated as 
non-compensable; and residuals of a fracture of the 3rd and 
4th metacarpals of the left hand, rated as non-compensable.  
His combined disability evaluation is 70 percent.  The 
veteran was previously service-connected for alcoholism, but 
service connection for alcoholism was severed.  

The veteran's wound to the left upper deltoid/scar is a 
combat injury and he has PTSD as a result of combat and his 
injuries.  Thus, these disabilities have a common etiology 
and the veteran therefore meets the schedular criteria when 
these disabilities are combined per 38 C.F.R. § 4.25.  

In September 1997, the veteran suffered a spinal cord injury 
and lost an eye in a fall.  October 1997, the veteran was 
afforded a VA aid and attendance/housebound examination which 
showed that the veteran was suffering from cervical spine 
incomplete quadriplegia and used an external catheter.  The 
veteran subsequently underwent occupational therapy. 

In October 2000, the veteran was afforded a VA examination.  
Significant deficits in both arms were noted in conjunction 
with the spinal cord injury.  

In November 2001, a VA Social Survey was conducted.  It was 
noted that the veteran had a history of unemployment which 
was exacerbated by excessive drinking, his inability to deal 
with authorities, and disruptive behavior that appeared to be 
self-destructive.  The veteran indicated that his alcoholism 
had a negative effect on his past relationships with family 
and his ability to maintain a job and a stable lifestyle.  

In October 2001, the veteran was afforded a VA PTSD 
examination.  The examiner concluded that while the veteran 
might currently be unemployable, it was not due to his PTSD.

He was afforded a VA digestive condition examination in 
October 2001.  The diagnoses were spinal cord injury due to 
traumatic trauma to head and left side of skull; arthritis of 
the right hand; fracture of the right hand with residual 
deficits to the right 3rd, 4th, and 5th fingers; hemorrhoids; 
PTSD (noted in psychiatric examination); arthritis of the 
left shoulder; and left shoulder muscle injury.

The veteran continued to attend VA occupational therapy for 
his spinal cord injury.  

In December 2004, the veteran was afforded a VA joints 
examination.  An examination of the left shoulder was 
conducted which revealed osteoarthritis, retained muscle 
fragments in the left proximal humerus, and residuals of a 
soft tissue injury.  An April 2005 examination resulted in 
the same diagnoses.  In addition, the veteran had a healed 
fracture of the right 3rd and 4th metacarpals, a healed 
fracture with extensor disruption of the right little finger, 
and external hemorrhoids.  The examiner provided an opinion 
as to whether the veteran would be precluded from sedentary 
work due to his service-connected disabilities.  The examiner 
opined that he would not be limited from sedentary employment 
due to his service-connected disabilities.  His major problem 
was his neurological deficit from his cervical spine injury 
which caused his major hand dysfunction.  He was able to do a 
little bit of writing and typing and was attending 
occupational and recreational therapy with VA.  The veteran 
would not be able to do any significant lifting based on his 
neurological deficit and not his healed fractures.  The 
veteran had indicated that prior to his neck injury, he was 
able to reach above his head level with his left arm.  
Therefore, the examiner concluded that the current limitation 
of motion of the left arm was due to the atrophy and disuse 
due to his spinal cord injury.  In the examiner's opinion, 
the veteran was not employable; however, not from his 
service-connected disabilities at all.  

In April 2005, the veteran was afforded a VA PTSD 
examination.  The examiner opined that while the veteran was 
physically able to work, his work opportunities would be 
limited and prevent him from advancement.  At the present 
time, his PTSD symptoms would not totally render him unable 
to perform even sedentary employment, but would severely 
limit his opportunity for employment and his ability to keep 
a job.  His global assessment of functioning was 65.  GAF 
scores ranging between 61 to 70 reflect some mild symptoms 
(e.g., depressed mood and mild insomnia) or some difficulty 
in social, occupational, or school functioning (e.g., 
occasional truancy, or theft within the household), but 
generally functioning pretty well, and has some meaningful 
interpersonal relationships.

In April 2007, the veteran was afforded a VA hand 
examination.  The examiner indicated that all current left 
hand symptoms were due to the veteran's spinal cord injury.  

The competent medical evidence establishes that the veteran 
is unemployable due to the residuals of his spinal cord 
injury.  However, the question remains as to whether his 
service-connected disabilities prevent him from securing and 
following substantially gainful employment.

Thus, the issue is whether the veteran's service-connected 
disabilities preclude him from engaging in substantially 
gainful employment (i.e. work which is more than marginal, 
that permits the individual to earn a "living wage"). 38 
C.F.R. § 4.16(b) (2005); Moore v. Derwinski, 1 Vet. App. 356 
(1991).  The record must reflect that circumstances, apart 
from non-service-connected conditions, place him in a 
different position than other veterans having the same 
compensation rating.  The sole fact that a claimant is 
unemployed or has difficulty obtaining employment is not 
enough.  A high rating in itself is recognition that the 
impairment makes it difficult to obtain or keep employment.  
The ultimate question is whether the veteran, in light of his 
service-connected disabilities, was capable of performing the 
physical and mental acts required by employment, not whether 
he could find employment.  Van Hoose v. Brown, 4 Vet. App. 
361 (1993).

The Board finds that the veteran's service-connected 
disabilities alone do not preclude him from engaging in 
substantially gainful employment.  While his disabilities, 
particularly his PTSD, would limit opportunities and 
advancement potential, the VA examiner concluded that the 
veteran was not precluded from sedentary employment.  
Likewise, his orthopedic/physical disabilities which are 
service-connected also do not preclude sedentary employment.  
A combined 70 percent rating contemplates an impairment in 
the ability to perform substantially gainful employment due 
to the veteran's service-connected disabilities.  However, 
"[t]he percentage ratings represent as far as can practicably 
be determined the average impairment in earning capacity 
resulting from such diseases and injuries and their residual 
conditions in civil occupations."  38 C.F.R. § 4.1.  The 
Board believes that the VA Schedule for Rating Disabilities 
and the disability evaluation assigned to the veteran's 
service-connected disabilities under that Schedule accurately 
reflect the veteran's overall impairment to his earning 
capacity.  Therefore, a TDIU rating is not warranted.


ORDER

Entitlement to a total disability rating based on individual 
unemployability due to service-connected disabilities is 
denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs