Citation Nr: 0813324 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-39 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the Philippine Guerilla and Combination Service from January 1945 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In filing his notice of disagreement and substantive appeal, the veteran made clear that he only wished to appeal the denial of a grant of TDIU. There is, however, some indication that the veteran believes his service-connected disabilities to have grown in severity. The matter is referred to the RO, and the veteran is encouraged to submit a new claim for an increase in ratings should he feel his conditions have grown in severity. The appeal has been advanced on the docket due to the advanced age of the veteran. FINDING OF FACT 1. The veteran's service-connected disabilities are post- traumatic stress disorder (PTSD), rated 30 percent; residuals of a shrapnel wound to the left forearm, rated 10 percent; hearing loss in the right ear, rated 10 percent; tinnitus, rated 10 percent; malaria, rated noncompensable; and a residual shrapnel wound scar in the left eyebrow region, rated noncompensable. 2. The veteran has a college education, was last employed full time in 1984 as an elementary school teacher and has indicated that he became too disabled to work in January 1999. 3. The preponderance of the competent evidence of record does not show that the veteran's service-connected disabilities preclude him from maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a total disability evaluation based on individual unemployability due to service-connected disability have not been met, nor have the criteria for referral for consideration of a total disability evaluation based on individual unemployability on an extraschedular basis been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The enactment of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and redefined the obligations of VA with respect to the duty to assist the veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007), petition for cert. filed (U.S. March 21, 2008) (No. 07-1209); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. This notice must also inform the veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. Further, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that, at a minimum, adequate VCAA notice in a claim for increased rating requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The Board concludes that the RO did not adequately apprise the veteran of all the information and evidence needed to substantiate the claims prior to the initial adjudication of his claim (specifically, the minimum eligibility for schedular entitlement was not provided in a March 2005 VCAA letter); however, the veteran did receive information as to his requirement to show that he cannot work due to service- connected disabilities in the March 2005 letter, and the exact schedular criteria was provided in post-decisional documents and a subsequent re-adjudication in the September 2005 statement of the case, curing any prejudice presumed by the timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The VCAA letters of record do not contain the level of specificity set forth in Vazquez-Flores. However, this decision denies entitlement to the benefits sought on appeal, and the veteran was subsequently presented this information in an SOC, which re-adjudicated the contested claim. See Prickett, supra (issuance of fully compliant VCAA notification followed by re-adjudication of the claim, such as in an SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). Moreover, the presumed error raised by such defect is rebutted because of evidence of actual knowledge on the part of the veteran and his representative, and other documentation in the claims file reflecting such notification shows that that a reasonable person could be expected to understand what was needed to substantiate the claim for entitlement to a TDIU. See Sanders, supra. That is, the veteran and his representative have shown by the nature of the argument presented that they are aware of what information and evidence is needed to support the claim, and it has not been contended otherwise. See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Information was provided as to how a disability rating or effective date is established should the claims be granted (Dingess requirements). Any prejudice raised by the timing of such notice is rebutted, as the decision herein represents a denial of the benefit sought on appeal, mooting the need for further notice. Dingess, supra. There is nothing alleged or present in the record which would affect the essential fairness of the adjudication. See Sanders, supra (the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication.). Regarding VA's duty to assist the veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. The Board notes that the veteran was provided thorough VA examinations that are adequate for rating purposes. As explained in more detail below, the veteran does not meet the scheduler criteria for a total disability rating based upon individual unemployability and the medical evidence does not show the criteria for referral for consideration for such a rating on an extraschedular basis have been met. The evidence is adequate to adjudicate this appeal; there is no further duty to provide an examination or medical opinion. Applicable Legal Criteria - TDIU A total rating based on unemployability due to service- connected disabilities may be granted if the service- connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 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. 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). Analysis The veteran contends that the combination of his service- connected disabilities prevent him from engaging in any type of gainful employment and that as a result, he should be awarded a TDIU. The veteran's service-connected disabilities are PTSD, rated 30 percent; residuals of a shrapnel wound to the left forearm, rated 10 percent; hearing loss in the right ear, rated 10 percent; tinnitus, rated 10 percent; malaria, rated noncompensable; and a shrapnel wound scar in the left eyebrow region, rated noncompensable. He has indicated in his application for a total disability rating based upon individual unemployability that he has a college education, was last employed full time in 1984 as an elementary school teacher and became too disabled to work in January 1999. In reviewing the record, the Board notes that the veteran's application for compensation was construed as involving claims for increased ratings for his service-connected disorders as well as a claim for a TDIU. The May 2005 rating decision addressed both the TDIU and increased rating claims. However, in filing his notice of disagreement (NOD), the veteran only posited disagreement with the claim for a TDIU and that is the only issue that has been developed for appellate review. The veteran has submitted statements in which he claims that his service-connected conditions have become disabling to a degree that he cannot work. The first question which the Board must address is whether he meets the criteria for the benefit sought on a schedular basis. As the veteran does not have a single service-connected disability ratable at 60 percent or more, or at least one disability ratable at 40 percent or more, to bring the combined rating to 70 percent or more, he does not satisfy the percentage rating standards for individual unemployability benefits. See 38 C.F.R. § 4.16(a). However, the question remains whether such benefit is warranted an extraschedular basis. 38 C.F.R. § 4.16(b). In such an instance, the question then becomes 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") consistent with his education and occupational experience. Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the evidence of record, to include reports of several VA examinations from March and April 2005, does not support the veteran's claim that his service- connected disabilities, standing alone, prevent him from engaging in all forms of substantially gainful employment consistent with his education and employment background. Initially, the Board notes that veteran's service-connected disabilities have not required frequent hospitalizations so as to affect a pursuit of employment or to render his symptoms outside the scope of the schedular criteria. A VA audiological examination showed that the veteran continues to have bilateral hearing loss and tinnitus and has difficulty in communicating in a noisy environment. Following additional VA examinations in March and April 2005, clinicians reported that his malaria and shell fragment wound scars had no effect on his employment. Following a musculoskeletal examination during this time, the examiner opined that the veteran's service-connected muscle injury (shell fragment wound of the left forearm) had a moderate effect on his performance of daily activities and that more than light manual labor was not feasible using his left upper extremity. It is pertinent to note here that, with respect to the veteran's hearing loss, tinnitus and left forearm disability, he has a college education and his employment background includes teaching. After a VA psychiatric examination in April 2005, the examiner concluded that the veteran's PTSD did not contribute to any functional impairment or preclude employment; rather, the psychiatrist noted that the veteran retired due to advanced age from his career in education. The veteran, as a layperson, is not competent to declare himself unemployable due to his service- connected disabilities. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In view of the foregoing, the Board finds that the preponderance of the competent evidence of record does not show that the veteran's service-connected PTSD, residuals of a shrapnel wound to the left forearm, hearing loss in the right ear, tinnitus, malaria and a residual shrapnel wound scar in the left eyebrow preclude him from maintaining substantially gainful employment consistent with his education and occupational experience and the evidence does not indicate that the veteran's case is outside the norm. Accordingly, referral for consideration of a total disability rating based upon individual unemployability due to a service- connected disabilities under the provisions of 38 C.F.R. § 4.16(b) is not warranted. In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs