Citation Nr: 0814098 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-10 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from July 1971 to November 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2007, the Board remanded this case for due process consideration. The case has been returned to the Board for further review. In December 2007, the veteran appeared at the St. Louis RO and testified via video before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The veteran is service connected for emphysema, evaluated as 30 percent disabling; left shoulder impingement syndrome, evaluated as 20 percent disabling; right shoulder impingement syndrome, evaluated as 20 percent disabling; and residuals of a left wrist fracture with degenerative changes, evaluated as 10 percent disabling. His combined disability rating is 60 percent. 2. The veteran is not considered unemployable due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 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 notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, the veteran received notification prior to the initial (July 2003) agency decision that is being appealed. The RO's May 2003 notice letter informed the veteran that he could provide evidence to support his claim or the location of such evidence. The notice letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. He was also advised of the specific criteria for establishing a total disability evaluation based on individual unemployability. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. The Board has applied these requirements to the veteran's TDIU claim. The 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. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The notice letter mailed to the veteran in March 2006 addressed the Dingess requirements. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130, 2007 WL 2694606 (Fed. Cir. Sept 17, 2007) [hereinafter Mayfield III]. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). Here, following the March 2006 notice letter, the veteran's claim was readjudicate in a November 2006 SSOC. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all identified and available VA and non-VA medical records. Records considered by the Social Security Administration (SSA) in making its decision are also of record. The veteran was also provided an opportunity to set forth her contentions during the hearing before the undersigned. The appellant has been afforded multiple VA medical examinations during the course of this appeal. Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. 38 C.F.R. § 4.15. Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Hatlestad v. Derwinski, 1 Vet. App 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need for discussing whether the standard delineated in the controlling regulations was an 'objective' one based on average industrial impairment or a 'subjective' one based upon the veteran's actual industrial impairment. The Board is bound in its decisions by the regulations, the Secretary's instructions and the precedent opinions of the chief legal officer of VA. 38 U.S.C.A. § 7104(c) (West 2002). In a pertinent precedent opinion, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that 'unemployability' is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. For a veteran to prevail on a claim based on individual unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such a veteran. See 38 C.F.R. §§ 4.1, 4.15. The sole fact that a veteran 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16(a); see also Van Hoose, 4 Vet. App. at 363. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Service connection is currently in effect for emphysema, evaluated as 30 percent disabling; left shoulder impingement syndrome, evaluated as 20 percent disabling; right shoulder impingement syndrome, evaluated as 20 percent disabling; and residuals of a left wrist fracture with degenerative changes, evaluated as 10 percent disabling. His combined disability rating is 60 percent. The veteran is not service connected for any other disability, which means that his combined disability rating is 60 percent. 38 C.F.R. § 4.25 (2007). He therefore does not meet the schedular requirements for a total disability rating based on individual unemployability. Nevertheless, he contends that his service-connected disabilities, in and of themselves, prevent him from obtaining or maintaining employment. Evidence contained in the record shows that the veteran last worked as a prep cook in 1991. He claimed in his original application for compensation that he left his job due to symptoms of his wrists and back. By his own reports, he stopped working because the medication he took when his shoulder started hurting (from lifting heavy supply bags) made him drowsy. It also put him in and bad mood he would get mouthy. His past employment required heavy lifting as well. Additionally, there is some evidence that suggests that the veteran effectively has high school education via a GED certificate. The report of the July 2003 VA examination indicated that the veteran's shoulder condition and chronic obstructive pulmonary disease (COPD) are not significantly limiting for the him. It was also the examiner's medical opinion that the veteran's left wrist condition was as likely as not limiting for the veteran, such that he was not able to perform a physical job such as a restaurant worker. Further, the examiner opined that sedentary work was as likely as not feasible due to his wrist condition. The Board notes that the July 2003 examination was less than clear as to whether the veteran's left wrist disability prevented him from sedentary work as well as physical work. The examiner's conclusion was poorly phrased and left to interpretation. Nevertheless, even if the July 2003 report were liberally construed as stating that the veteran was essentially rendered unemployable due to his left wrist disability, the Board finds that the preponderance of the evidence is against the veteran's claim for total disability evaluation based on individual unemployability. An April 2006 VA examination report diagnosed (1) COPD with stable spirometry findings and stable chest x-ray with current daily treatments with triamcinolone inhaler and albuterol on an as needed basis, (2) bilateral shoulder impingement syndrome with acromioclavicular joint arthritis currently requiring daily inflammatory treatments without increased restriction in range of motion, weakness, or noted fatigability (in comparison to the July 2003 VA examination), and (3) left wrist fracture by history with mild degenerative changes without loss in range of motion, weakness, or fatigability. With respect to the TDIU claim, the examiner stated that it is not at least as likely as not that the veteran's current unemployability status was directly related to his service-connected disabilities. Rather, it was felt that the veteran unemployability was more directly related to his non-service connected conditions. The theory that the veteran may be unemployable due to non- service connected disabilities, but not solely due to service-connected disabilities, is supported by other relevant evidence of record. Specifically, the Board notes that the veteran has been diagnosed with, but not service- connected for, paranoid schizophrenia, a right wrist disability that limits his ability to write, degenerative joint disease of the lumbar spine, a bilateral knee disability, and bilateral eye disability. Moreover, the veteran's psychiatric disability, right wrist disability, low back disability, bilateral knee disability, and bilateral eye disability are not for consideration when addressing whether the veteran is unemployable solely because of service- connected disabilities. A July 1990 VA Form 28-1902b (Counseling Record - Narrative Summary) makes numerous references to the veteran having a personality and/or psychiatric disability that interfering with his employability. Indeed, the examiner indicated that there was a "special concern" with regard to the veteran psychiatric disorder. A September 1991 VA Form 28-1902b shows that the veteran's psychiatric problems made him a poor candidate for vocational rehabilitation. A July 1995 SSA psychologist's functional capacity assessment noted that the veteran was hypervigilant, suspicious, and hostile. His thinking, appearance, and some behaviors were bizarre. Attention and concentration were decreased secondary to hallucinations and thought disorder. Cognitively, he could follow simple directions and perform simple tasks not requiring sustained, intense concentration. He would have difficulty relating appropriately to coworkers and would both distract and be distracted by them. He could be very difficult to supervise and would not adapt well to the stress of a work environment. An October 1998 VA mental health treatment record states that the veteran is not able to work because of his mental and physical disabilities. During a January 1999 psychological evaluation, the veteran could only cite "nerves" as the reason why his last job ended and he was unable to work. He indicated that he frequently becomes fired when he messes up. The psychologist noted that much of this appeared to be anger or impulse related. The veteran also reported that he has memory lapses and will sometimes cuss out a coworker or other employee and then will not remember it later. In other words, the above reports and records clearly support the negative findings made in the aforementioned April 2006 examination report, which determined the veteran's non- service connected disabilities resulted in his unemployability. Indeed, the Board's attention is drawn to the fact that SSA disability benefits were awarded based on the primary diagnosis of a non-service connected schizoaffective disorder. The Board therefore affords greater probative value to the April 2006 examination report. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board further notes that the veteran has claimed that he applied for VA vocational rehabilitation benefits but was rejected due to his disabilities. A February 2002 VA Vocational Rehabilitation Counseling Record, however, reflects that the veteran was found entitled to VA Vocational Rehabilitation under Chapter 31, Title 38, United States Code, based on his disabilities, mental illness, and dependence on the Social Welfare System. He was noted to be in need of an Individualized Independent Living Program (IILP) to ensure he reaches him maximum potential. A May 2002 report of contact notes that the veteran stated that he is not prepared to start training under his IILP. A total rating based on individual unemployability for VA compensation purposes requires that the veteran be unemployable solely because of service-connected disorders. The overwhelming weight of the evidence is that, while the veteran may not be working, his unemployment status is not primarily attributed to his service-connected disorders. The disability rating assigned to the veteran compensates him for the average impairment of earning capacity. There is no credible evidence that his lack of employment is due entirely, or even primarily, to his service-connected disorders. Consequently, it is the Board's opinion that the veteran's service-connected emphysema, left wrist, and bilateral shoulder disabilities alone are not sufficient to produce the veteran's unemployability. The preponderance of the evidence is against the veteran's claim for a total disability rating based on individual unemployability and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). Therefore, the veteran's claim for a total disability rating based on individual unemployability must be denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs