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