Citation Nr: 1013261 Decision Date: 04/07/10 Archive Date: 04/14/10 DOCKET NO. 05-23 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD Shabnam Keyvan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to January 1959 and from April 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The October 2004 rating decision denied entitlement to TDIU. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held in December 2008, at the Waco RO, before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002 & Supp. 2009) and who is rendering the determination in this case. A transcript of the testimony is in the claims file. The Board remanded the case for further development in March 2009, and as will be discussed below, pursuant to the Board remand, the RO scheduled the Veteran for two VA examinations. However, the Veteran failed to report for both examinations and has not shown good cause for his failure to report for his scheduled examinations. As such, the Board finds that the RO attempted to complete the development requested in the March 2009 Board remand and complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). It bears emphasis that VA's duty to assist is not always a "one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that the Veteran bears the burden of keeping VA apprised of his whereabouts and that, where he does not, "there is no burden on the part of the VA to turn up heave and earth to find him"). The case has since been returned to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran is currently assigned a 20 percent evaluation for residuals of a right ankle sprain and right foot injury; a 50 percent evaluation for bilateral hearing loss; and, a 10 percent evaluation for tinnitus. 3. The Veteran's service-connected disabilities have not been shown to render him unemployable. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is 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 or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Board does acknowledge that the RO did provide the appellant with notice in May 2004, prior to the initial decision on the claim in October 2004, as well as in March 2006. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the May 2004 notice letter about the information and evidence that is necessary to substantiate his claim for entitlement to TDIU. Specifically, the May 2004 letter notified the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation solely due to his service-connected disabilities. The letter indicated that in order to qualify for a total disability rating he must have: one service-connected disability ratable at 60 percent or more; or two or more service-connected disabilities with at least one ratable at 40 percent or more and sufficient additional disability to bring the combined disability rating to 70 percent or more. In addition, the RO notified the Veteran in the notice letter about the information and evidence that VA would seek to provide. In particular, the May 2004 letter also indicated that VA would obtain any VA medical records as well as any treatment records he identified. The RO also informed the Veteran about the information and evidence that he was expected to provide. Specifically, the May 2004 letter notified the Veteran that he should inform VA about any additional information or evidence that he would like the agency to obtain. The May 2004 letter also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. Further, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, 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. 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. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. In this regard, the Board notes that the March 2006 letter informed him that a disability rating was assigned when a disability was determined to be service-connected and that such a rating could be changed if there were changes in his condition. The letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran was afforded VA examinations in February 2000, June 2004 and September 2005 with respect to his joints, he was afforded VA examinations for his feet in July 2002 and April 2007, and he was afforded a VA audiological examination in October 2004. The Board further observes that the Veteran was scheduled for two VA examinations in June 2009, but the Veteran failed to report. The Board notes that the Court has held that the Secretary has the authority to schedule a Veteran for an examination for confirmation purposes. Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Further, the duty to assist is not a one-way street. If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board observes that the Veteran was sent a letter in May 2009 notifying him that he would be scheduled for a VA examination in connection with his TDIU claim. The letter specifically informed the Veteran that the claim will be rated on the evidence of record if he failed to report for an examination without good cause. The Compensation and Pension Examination Inquiry Report reflects that a request for a VA examination with respect to the Veteran's hearing as well as the Veteran's joints was initiated in May 2009. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with SOCs and SSOCs, which informed them of the laws and regulations relevant to the Veteran's claims. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. II. Law and Analysis Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, Compensation and Pension Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, Compensation and Pension Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the Court. For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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 Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993). In this case, the Veteran is currently assigned a 20 percent disability evaluation for the residuals of a right ankle sprain and right foot injury, a 50 percent disability evaluation for bilateral hearing loss and a 10 percent disability for tinnitus. His combined evaluation is 60 percent. As such, the ratings assigned for the Veteran's service-connected disabilities in this case do not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). Nevertheless, as previously stated, Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards may submit claims to the Director of the Compensation and Pension Service for extraschedular consideration in cases of Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). In this case, the RO denied referral for consideration of the Veteran's TDIU claim on an extraschedular basis in the October 2004 rating decision because the evidence failed to show that the Veteran was unemployable due to his service-connected disabilities. Because the ratings assigned for service-connected disabilities in this case do not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a), the Board will review the RO's decision to deny referral to the Director of the Compensation and Pension Service for consideration of the Veteran's TDIU claim on an extraschedular basis because the evidence failed to show that the veteran was unemployable due to his service-connected disabilities. Floyd, 9 Vet. App. at 95; Bagwell, 9 Vet. App. at 339. Upon review of the claims file, the Board finds that the evidentiary record does not support a conclusion that there are any unusual or exceptional circumstances present in the Veteran's case as to have warranted its referral to the VA Director of the Compensation and Pension Service. In this regard, there has been no indication that VA's schedule for rating disabilities is insufficient or inadequate to assign ratings for the Veteran's service-connected disabilities. The Board acknowledges that the Veteran is currently unemployed as well as his contention that he is too disabled to maintain employment. The record reflects that the Veteran relies on assistive devices and the help of his daughter to conduct ambulatory and day to day activities. However, the fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. As noted above, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. At the outset, the Board notes that the adjudication of this issue has been made significantly more difficult by the Veteran's failure to report for a VA examination. According to 38 C.F.R. § 3.655, in an original compensation claim, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. In this case, during his October 2004 VA examination concerning his hearing loss, the examiner opined that "with amplification and with reasonable accommodations as specified in the Americans with Disabilities Act, it is unlikely that this loss would significantly affect vocational potential or limit participation in most work activities." The June 2004 VA examination was specifically scheduled to evaluate the Veteran's joints. The examiner did not comment on whether the Veteran's disabilities were so severe as to preclude gainful employment. In its March 2009 remand, the Board instructed the RO to schedule the Veteran for another VA examination and asked the examiner to provide an opinion determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran was scheduled for separate joint and audiological examinations in June 2009 and he failed to report for both examinations. However, the audiologist, upon reviewing the Veteran's claims file and treatment records, noted that the Veteran had recently visited the VA medical facility for air-conduction testing several days earlier. The audiologist determined that the requested opinion could be rendered without examining the Veteran. Based on his review of the Veteran's claims file and records, the examiner opined that "with the use of [the Veteran's] hearing aids, his amplified telephone, and reasonable accommodations as specified in the American with Disabilities Act, the Veteran's loss should not adversely affect vocational potential or limit [his] participation in most work related activities." As such, the medical evidence does not show the Veteran to be unemployable due solely to his service-connected disabilities. As previously noted, the Veteran failed to report for his joint examination and his June 2004 VA examiner did not comment on whether the Veteran is capable of performing the physical and mental acts required by employment. The Board notes that the RO sent the Veteran a letter in May 2009 notifying him that he would be scheduled for a VA examination at the VA medical facility nearest him and would receive an appointment notice alerting him of the date, time and place of the examination. The RO also informed the Veteran that if he could not keep his appointment or wished to have it rescheduled, he should contact the medical facility on the appointment notice to let them know. The computerized Compensation and Pension Inquiry form indicates that a request was initiated in May 2009 to schedule the Veteran for two separate VA examinations in connection with his TDIU claim. The Inquiry form contains the Veteran's last known address at that time. The record reflects that the Veteran has had several different addresses through the course of this appeal. If the Veteran did not receive a notification letter letting him know when his examination was scheduled because he changed his address, he bears the burden of keeping VA apprised of his whereabouts. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) ("there is no burden on the part of the VA to turn up heaven and earth to find him"). A review of the record file does not reveal any evidence that mail sent to the Veteran had been returned as a result of having been sent to an incorrect address. Therefore, without any evidence to the contrary, the Board assumes that the Veteran did receive notification of his scheduled VA examination and failed to report to it. Based on the foregoing, the Board concludes that while the Veteran undoubtedly has industrial impairment as a result of his service-connected disabilities, as evidenced by his combined 60 percent disability evaluation, the evidence does not show that the service-connected disorders alone precludes gainful employment. The Board notes that "[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 (2009). Based on a review of the evidence of record regarding the impairment in earning capacity as a result of the service- connected disabilities of the Veteran in this case in particular, the Board is of the opinion that the disability evaluations assigned to the Veteran's disorders under the VA Schedule for Rating Disabilities accurately reflects the Veteran's overall impairment to his earning capacity due to his service-connected disabilities. Therefore, referral for extraschedular consideration for a total rating for compensation based on individual unemployability due to service-connected disability is not warranted. 38 C.F.R. § 4.16(b). ORDER A total disability evaluation based upon individual unemployability due to service-connected disability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs