Citation Nr: 0814287 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-00 255A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from January 1953 to January 1956. This case initially came before the Board of Veterans' Appeals (Board) on appeal from the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in May 2007 for adjudicative action. The RO continued to deny the claim, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. Service connection has been established for cold injury residuals of the left lower extremity, evaluated as 30 percent disabling; cold injury residuals of the right lower extremity, evaluated as 30 percent disabling; bilateral hearing loss, evaluated as 20 percent disabling; cold injury residuals of the right upper extremity, evaluated as 10 percent disabling; cold injury residuals of the left upper extremity, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The veteran's combined service-connected disability rating is 80 percent. 2. The objective evidence of record fails to demonstrate that the veteran's service-connected disabilities are so severe as to combine to preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice should be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a claim for increase, such as a claim for a TDIU, section 5103(a) requires that the Secretary (1) 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; (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 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) notify the claimant 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; and (4) 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). It must be noted that a claim for entitlement to a TDIU is different than a regular claim for increase in that no Diagnostic Code is applied. Rather, it must be determined if the veteran meets the schedular criteria for a TDIU and then whether the evidence shows that the veteran is unable to secure or follow substantially gainful employment. The veteran was sent a notification letter in February 2005, which was before initial consideration of the claim, which informed him of the criteria needed for a TDIU. Additionally, it is clear that the veteran has actual knowledge of the criteria needed to establish this benefit, as he has stated that his service-connected disabilities prevent him from working. The veteran has been given proper notice. The Board also finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. VA has obtained VA treatment records and private medical records, and records relied on in awarding the veteran Social Security benefits and workman's compensation benefits. VA did not provide him with an examination in connection with the claim for a TDIU, and the Board does not find that an examination was necessary. See 38 U.S.C.A. § 5103A(d)(2) (West 2002). Specifically, a claim for a TDIU does not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A) - (C) (West 2002); see also 38 C.F.R. § 3.159(c)(4)(A) - (C) (2007). The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran 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). II. TDIU The veteran asserts that he cannot work due to his service- connected disabilities. In the VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, he stated that he became too disabled to work as of November 29, 2004, due to his hearing loss and his left and right foot disabilities. The veteran indicated he had completed high school and had worked for himself. It seems as though he did not include his former employer where he worked as a facility engineer at an airport. He was asked whether he left his last job because of his disability, and he responded yes. He also stated he had not tried to obtain employment since he had become too disabled to work. In the "Remarks" section of the he stated he could no longer work as a facility engineer because of his residuals of frostbite to his lower extremities. Service-connected disabilities are rated based primarily upon the average impairment in earning capacity. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A total rating is also authorized for compensation purposes if the requirements of 38 C.F.R. § 4.16 are met. Pursuant to 38 C.F.R. § 4.16(a), a total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (2007) (stating that age may not be a factor in evaluating service-connected disability or unemployability). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In evaluating whether the veteran's service-connected disability precludes substantially gainful employment, the Court has found that substantially gainful employment means work which is more than marginal and permits the individual to earn a "living wage." The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Service connection has been established for cold injury residuals of the left lower extremity, evaluated as 30 percent disabling; cold injury residuals of the right lower extremity, evaluated as 30 percent disabling; bilateral hearing loss, evaluated as 20 percent disabling; cold injury residuals of the right upper extremity, evaluated as 10 percent disabling; cold injury residuals of the left upper extremity, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The veteran's combined service-connected disability rating is 80 percent. He meets the threshold schedular requirements for consideration of individual unemployability under 38 C.F.R. § 4.16(a). However, after having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the veteran's service- connected disabilities render him unable to secure or follow a substantially gainful occupation. The reasons follow. Prior to the veteran's claim for entitlement to a TDIU, received in December 2004, he had reported consistently that he was retired. VA clinical records dated from 1999 to 2005 show reports that the veteran last worked as a facility engineer and was now retired. At a June 2004 hearing before a Decision Review Officer, the veteran stated he was retired. There are private medical records, dated in 1993 and 1994 (which is when the veteran last worked), that show the veteran had multiple disabilities at that time, none of which included his service-connected disabilities. For example, the veteran had sustained an injury to his left arm in March 1993. In a January 1994 letter from a private physician, he stated it had been determined that the veteran had sustained a ruptured biceps tendon and developed a traumatic tenosynovitis and concomitant flexor tendinitis of the medial epicondylar area. By January 1994, the veteran's left arm was not completely healed, and the private physician determined the veteran had a permanent partial disability of the left upper extremity of 10 percent and of the left middle finger of 10 percent. In April 1994, the veteran underwent a cardiac catheterization, which showed severe triple vessel coronary artery disease, and it was recommended that the veteran undergo coronary bypass surgery "at the earliest possible time." He underwent quadruple coronary bypass grafting later that month. A September 1994 private medical record shows that the veteran reported he last worked in April 1994 as a facility engineer at the airport. The examiner stated, "He worked there for about eight and one-half years and happened to quit working because he had a bypass surgery." He noted, "According to [the veteran], he cannot work mainly because of his physical disabilities." While it could be argued that the physical disabilities could include the service- connected disabilities, the veteran was not reporting the physical problems associated with his service-connected disabilities. At the time of the September 1994 examination, he reported having a problem with his lower back and weakness in his left arm (both not service connected). He reported chest pains and having undergone bypass surgery (both not service connected). He also reported a history of colon cancer, which had been removed in 1990 (not service connected). He complained of "a lot of physical limitations in the sense that he cannot do any lifting or bending, and that he has to walk slowly." The veteran stated he had numbness in his left lower extremity. While some of these physical symptoms could be attributable to the now service-connected disabilities (the veteran was not service connected for any disabilities prior to 1995), a November 1994 private physical examination showed normal findings regarding the lower extremities. A physician made the following summary of the veteran's physical examination: We have a history of a man with a number of different medical problems. He has low back pain but the range of motion of the lumbar spine is normal except for some decrease in tilting. The neurological examination in the lower extremities is normal. As far as the left arm is concerned, he appears to have lateral epicondylitis. There is a decrease in left hand grip strength but fine function would appear to be entirely normal. There does not appear to be any compromise of the function of the fingers in the left hand. Essentially, the Board finds the veteran's allegation of having stopped working in 1994 due to his service-connected disabilities to be not credible. Further supporting this finding are numerous VA clinical records, dated from 1995 to 2004, where the veteran is not complaining of symptoms associated with his service-connected disabilities. He has a rather long medical history involving coronary artery disease with heart surgery, colon cancer, diabetes mellitus, peptic ulcer disease, and other disabilities. Further, in an August 2004 VA clinical record, the veteran reported a history of back surgery in the past and noted he had been "doing heavy work around the house for the past few weeks." He was lifting wood and felt acute pain in the lumbar area. He denied any leg weakness. The VA examiner diagnosed subacute low back strain. Additionally, a September 2004 VA record shows that the veteran had beautified his farm for a large wedding he was having for his son at that location. It was noted that the veteran had been "highly active since retiring in '90 with antiques, refinishing furniture." This record showed that the veteran reported he was building "stone walls, patios, driveways, etc." for his son's wedding. He stated that the pain he was experiencing began after he stopped all this work. The description in these clinical records do not show a man who cannot work due to service-connected disabilities or a man who is complaining of symptoms associated with his service-connected disabilities. Again, these treatment records show complaints of back pain and other physical complaints that do not involve his service-connected disabilities. Regardless, they show a man who can obtain and sustain gainful employment, as he is capable of refinishing furniture (sedentary work) and building "stone walls, patios, driveways, etc." (manual labor). The record reflects that the veteran was hospitalized in 2005 for his heart, and had to undergo another coronary bypass graft times two. The Court has stated that for a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the veteran's case outside the norm of a veteran with the same combined disability evaluation. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In that case, the Court noted that the appellant had a combined evaluation of 80 percent and that the Board's denial of a total rating for compensation based upon individual unemployability was plausible because there were no circumstances in the record that placed the veteran in a different category than other veterans so rated. Id. citing Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990). Here, the Board does not doubt that the service-connected disabilities, which combine to an 80 percent evaluation, cause the veteran some occupational impairment; however, there is a lack of evidence showing that there are circumstances that place him in a different category to warrant entitlement to a TDIU. The medical records in the claims file fail to show that it is these disabilities that solely cause his inability to work. The numerous VA treatment records in the claims file do not show recurring complaints or treatment for the service-connected disabilities; rather, they show recurring treatment for non- service-connected disabilities. In sum, based on the evidence of record, the Board finds that the veteran's inability to secure and follow a substantially gainful occupation, if such inability exists, is not due solely to his service-connected disabilities. The evidence suggests that although his service-connected disabilities pose impairment to his employability, any inability to hold a job has been in large part due to non-service-connected disabilities. Given that the service-connected disabilities do not preclude him from substantially gainful employment, the Board finds that the preponderance of the evidence is against the claim for a TDIU, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a TDIU is denied. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs