Citation Nr: 1030801 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 09-06 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service- connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Tiakyta Willie, Associate Counsel INTRODUCTION The appellant served on active duty from January 1966 to December 1967. This case initially comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The appellant's service-connected disabilities do not render him unable to obtain and retain substantially gainful employment. 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. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2009) REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA by letter dated in May 2007. Thus, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In connection with the current appeal, appropriate examinations have been conducted and available service treatment records have been obtained. Social Security Administration (SSA) records have also been obtained. The Board finds that the VA examinations were adequate. The examiners reviewed the history, established clinical findings and presented reasons for the opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Summary In his claim for compensation, the appellant related that he became disabled to work in June 2004. SSA records reveal that he was awarded SSA disability benefits in 2005 for non-Hodgkins lymphoma. It was noted in the December 2006 VA compensation and pension examination that the appellant was unemployed. It was noted that post service the appellant worked for General Motors and that he last worked in 1998. It was noted that the appellant retired as he had enough time in to retire. In the January 2007 VA mental disorders examination, it was noted that the appellant sold cars, worked at a feed mill and did odd landscaping jobs until 2004 when he started treatment for his lymphoma. It was noted that the appellant had not worked since June 2004 when he had surgery for treatment of his cancer, including removal of a tumor and a portion of the small intestine. Regarding work, moderate impairment was noted. It was stated that the appellant could not do any physical activity for more than a couple of hours without getting exhausted and that after mowing his lawn and feeding his pets he had to take a nap. Anxiety disorder due to non-Hodgkin's lymphatic lymphoma and mood disorder due to non-Hodgkin's lymphatic lymphoma was diagnosed. The VA examiner noted that the appellant had a successful and stable work and family life until several years ago when he developed non-Hodgkin's lymphatic lymphoma now in remission. The examiner noted that since then the appellant has not been able to work, has little energy to do things at home and tends to avoid most social events. In the August 2007 VA compensation and pension examination, it was noted that the appellant was unemployed. The examiner opined that, concerning the appellant's service connected disorder of peripheral neuropathy of both upper and lower extremities associated with non-Hodgkin's lymphoma, the condition rendered the appellant unemployable for a physically strenuous job but not unemployable for a light duty job. The examiner further opined that the appellant's service connected cancer of the small bowel and liver associated with non-Hodgkin's lymphoma and service connected non-Hodgkin's lymphoma in remission rendered the appellant unemployable for a physically strenuous job but not unemployable for a light duty job. In an August 2007 VA mental disorders examination, generalized anxiety disorder, dysthmic disorder, somatoform disorder; and schizoid personality disorder were diagnosed. A GAF score of 70 was assigned. The examiner noted that the mental disorder symptoms were controlled by continuous medication and that they were not severe enough to interfere with occupational and social functioning. The examiner opined that the appellant's anxiety disorder associated with non-Hodgkin's lymphatic lymphoma did not limit the appellant's ability to mentally function in a work environment, and that his mood disorder and personality disorder did not limit his ability to function mentally in his normal occupational environment. The appellant reported in February 2009 that the residuals from the non-Hodgkin's lymphoma and cancer of the small bowel as rated in the VA examination to include weakness, fatigue, chronic diarrhea and constipation along with the anxiety and depression are the reason he is unemployable. In the June 2009 VA examination, it was noted that the appellant was unemployed. Erectile dysfunction secondary to chemotherapy, non-Hodgkin's lymphoma in remission, and s/p liver biopsy positive for non-Hodgkin's lymphoma in remission were diagnosed. No significant occupational effects were noted. The examiner opined that the appellant's service connected erectile dysfunction secondary to chemotherapy for non-Hodgkin's lymphoma in remission, cancer small bowel and s/p liver biopsy positive for non-Hodgkin's lymphoma in remission individually do not render him unemployable for either heavy duty or sedentary environment. The examiner further opined that the appellant's service connected non-Hodgkin's lymphoma in remission individually does not render him unemployable for either heavy duty or sedentary environment. Peripheral neuropathy of the bilateral upper and lower extremities associated with non-Hodgkin's lymphoma was further diagnosed in the June 2009 VA compensation and pension examination. No significant occupational effects were noted. The examiner opined that the service connected peripheral neuropathy of the bilateral upper and lower extremities associated with non-Hodgkin's lymphoma individually rendered him unemployable for heavy duty but not sedentary employment. The examiner also opined that the appellant's non-service connected mild disease of the lumbar spine individually rendered him unemployable for heavy duty but not sedentary employment. In the July 2009 VA compensation and pension, generalized anxiety disorder, dysthmic disorder, somatoform disorder; schizoid personality disorder and non-Hodgkin's lymphoma were diagnosed. A GAF score of 70 was assigned. The examiner noted that the appellant's mental disorder symptoms were not severe enough for the appellant to be on any psychotropic medication or undergo psych medication monitoring. The examiner further noted that they were not severe enough to interfere with occupational and social functioning. The examiner stated that nothing was found in the record to support unemployability. The examiner opined that the appellant's mood disorder and personality disorder did not limit his ability to function mentally in his normal occupational environment. He also opined that the appellant's generalized anxiety disorder associated with non-Hodgkin's lymphoma did not limit the appellant's ability to mentally function in a work environment. Legal Criteria and Analysis Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420- 21 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. The appellant has indicated that he is unable to maintain employment because of his service connected disabilities. The record indicates that the appellant is currently service- connected for: anxiety disorder associated with non-Hodgkin's lymphoma, evaluated as 30 percent disabling; abdominal adhesions, post surgical residuals associated with cancer of the small bowel and liver, evaluated as 10 percent disabling; peripheral neuropathy, left upper extremity (nondominant) associated with non-Hodgkin's lymphoma, evaluated as 10 percent disabling; peripheral neuropathy, right upper extremity (nondominant) associated with non-Hodgkin's lymphoma, evaluated as 10 percent disabling; peripheral neuropathy, left lower extremity (nondominant) associated with non-Hodgkin's lymphoma, evaluated as 10 percent disabling; peripheral neuropathy, right lower extremity (nondominant) associated with non-Hodgkin's lymphoma, evaluated as 10 percent disabling; erectile dysfunction associated with non-Hodgkin's lymphoma, evaluated as 0 percent disabling; cancer of the small bowel and liver associated with non-Hodgkin's lymphoma, evaluated as 0 percent disabling; and non-Hodgkin's lymphoma, evaluated as 0 percent disabling. His combined disability evaluation is 60 percent (bilateral factor of 3.4 percent for diagnostic codes 8515, 8515, 8520, 8520). Under 38 C.F.R. § 4.16(a), "[f]or the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war." As the Veteran's service-connected disabilities all result from a common etiology, his service-connected non-Hodgkin's lymphoma, he is considered to have one 60 percent disability for purposes of 38 C.F.R. § 4.16(a). Accordingly, he meets the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). The issue remains whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Regarding whether the appellant is capable of performing the physical and mental acts required by employment, the Board notes that there is evidence both for and against the claim. Weighing in favor of the claim are the appellant's assertions that he is unable to maintain employment because of his service connected disabilities and the SSA determination finding him totally disabled due to non-Hodgkins lymphoma. The appellant has related that the residuals from the non-Hodgkin's lymphoma and cancer of the small bowel include weakness, fatigue, chronic diarrhea and constipation along with the anxiety and depression which render him unemployable. Weighing against the claim are the VA compensation and pension examinations which have found that the appellant's service- connected physical and mental disabilities at most may render him unemployable for heavy duty but not sedentary employment. The Veteran's only compensable service-connected disabilities are his service-connected anxiety disorder and his service-connected peripheral neuropathy of all four extremities. It was found in August 2007 that the peripheral neuropathy disability rendered the appellant unemployable for a physically strenuous job but not unemployable for a light duty job, and in June 2009 it was found that the disability rendered him unemployable for heavy duty but not sedentary employment. Regarding his mental disability, it has been found that the appellant's generalized anxiety disorder associated with non-Hodgkin's lymphoma did not limit his ability to mentally function in a work environment. The negative evidence in this case outweighs the positive. The Veteran genuinely believes that he cannot secure or follow a substantially gainful occupation as a result of his service- connected disabilities. However, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of his service connected disabilities, and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the opinion provided by the numerous VA medical professionals who obtained a history from the Veteran, reviewed the claims folders, including the SSA records, and found that the Veteran's service-connected conditions do not render the Veteran incapable of obtaining and retaining employment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical experts have provided these opinions and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that the multiple (negative) conclusions made by VA examiners that the Veteran's service-connected conditions do not render him incapable of obtaining and retaining employment outweigh the (positive) SSA disability determination. The Board finds the VA medical opinions with respect to employability more probative and persuasive because they are more numerous-several VA physicians reached the same negative conclusions-versus the single determination in the SSA records. In addition, the VA medical opinions are based on a more thorough review of the evidence. The SSA records note that the conclusions are based on only one medical source provided by the Veteran, and their determination was made in 2005, just over a year after the Veteran was first diagnosed with non-Hodgkin's lymphoma. The VA medical opinions, on the other hand, were based on a review of all the evidence of record, including private and VA treatment records dated through 2009, which reveal that the Veteran's Hodgkins has been in remission since 2004 or 2005. Further, the VA examination reports provide a more thorough rationale for their conclusions than is provided in the SSA records. The VA examiners based their conclusions on relevant sources of information that were not included in the SSA records, including the findings of serum, plasma, urine, and blood tests; detailed sensory examinations with respect to all extremities; a negative PET scan in 2008; computer tomography scans in 2009; and psychological testing. For example, the 2009 mental disorder examiner explained the finding that his service-connected psychiatric disorder was not severe enough to interfere with occupational functioning by explaining that the Veteran was not on psychotropic medication or undergoing psychotropic medication monitoring. In light of the above, the Board finds that TDIU on a schedular or extraschedular basis is not warranted. In this regard, the Board notes that it has not been shown that the appellant is unable to secure and follow a substantially gainful occupation by reason of his service- connected disabilities. 38 C.F.R. § 4.16(a), (b). The Board notes that at most it has been found that the appellant's service-connected peripheral neuropathy of the bilateral upper and lower extremities associated with non- Hodgkin's lymphoma individually rendered him unemployable for heavy duty but not sedentary employment. It appears that the appellant's other service connected disabilities do not render him unemployable for either heavy duty or sedentary work. The Board is mindful that throughout this appeal the appellant has been unemployed and that he has been since 2004. However, the sole fact that an appellant is unemployed or has difficulty obtaining employment is not enough. As such, the Board finds that the evidence regarding whether the appellant has a total disability has been not been presented. Based on the record, the Board cannot conclude that the appellant's disabilities preclude substantially gainful employment consistent with his education and previous work experience. As such, the Board finds that a grant of TDIU is not warranted on a scheduler or extraschedular basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A total disability rating for compensation on the basis of individual unemployability is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs