Citation Nr: 1032183 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 08-04 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1944 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied TDIU. This case was previously before the Board in April 2010 when the Board denied service connection for a low back disability and right and left lower extremity disabilities. In that decision, however, the Board granted service connection for hypertension and remanded the Veteran's claim for TDIU to be readjudicated based on this new service-connected disability. The Veteran's TDIU claim was readjudicated in April 2010 and has been returned to the Board for further appellate review. Therefore, the Board finds that the AMC has fully complied with its remand order, and the Board may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service connected for hypertension with a 10 percent evaluation since March 2007. 2. The Veteran has a sixth grade education and previously worked as a service station attendant; he last reportedly worked as a stocker for Wal-Mart in July 2001, prior to being service connected for hypertension. 3. The Veteran's service-connected hypertension, in and of itself, does not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) defines VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must 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, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, a June 2007 letter advised the Veteran of the evidence needed to substantiate a claim for TDIU, as well as the information and evidence that must be submitted by him and what information and evidence will be obtained by VA. The letter also advised the Veteran of the information and evidence necessary to establish a disability rating and effective date. See Dingess, supra. The claim was last adjudicated in April 2010. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, and an April 2007 letter from his VA physicians and nurses. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices and submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2009). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2009). In evaluating total disability, 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 effects of combinations of disability. 38 C.F.R. § 4.15 (2009). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16(a) (2009). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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) (2009); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran was service connected for his hypertension in an April 2010 Board decision. Prior to that Board decision the Veteran was not service connected for any disability. An April 2010 rating decision assigned a 10 percent rating for that disability, effective March 30, 2007-the date on which he filed his claim for TDIU-and the Veteran has not filed a notice of disagreement with that decision. Thus, the Veteran does not have a single disability rated 60 percent or a combined rating of at least 70 percent, and he does not meet the above-stated percentage requirements. The criteria for a schedular evaluation for TDIU under 38 C.F.R. § 4.16(a) have therefore not been met. That notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). 38 C.F.R. § 3.321(b)(1), which concerns extraschedular cases, indicates that extraschedular ratings are warranted for "an exceptional or unusual disability picture." Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice- connected condition and advancing age, which would justify a total rating based upon individual unemployability on an extraschedular basis. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A July 2001 VA Form 5655 indicates that the Veteran was working as a stocker for Wal-Mart since November 2000. In a December 2004 statement, the Veteran stated that he began working part- time and that he was no longer entitled to a VA pension. Where the Veteran was working in December 2004 is not noted in the record. The Veteran submitted an April 2007 letter from VA doctors and nurses at the Augusta VA Medical Center which indicated that the Veteran was being treated for: chronic obstructive pulmonary disease (COPD); hypertension; chronic low back pain with an MRI from June 2004 showing severe lumbar stenosis at the L2-3, L3-4, and L4-5 spinal segments; status-post June 2001 transurethral resection of the prostate (TURP); lower urinary tract symptoms, with a history of renal calculi; and, status-post debridement of deep dermal kerotosis of the right foot in August 2005. The letter stated that the Veteran was "limited in his mobility and complains of pain in lower back with radiating pain down his right leg. [The Veteran] is not able to seek any gainful employment at this time." The Veteran submitted a May 2007 statement which indicated that he suffered a lower back injury in service during a jeep accident, and got hypertension as a result. He stated that he had hypertension and back problems since that time, and that he was still taking medication for his hypertension. The Veteran did not indicate that he could not work due to his hypertension, specifically indicating only his nonservice-connected back condition as preventing him from working. VA treatment records from throughout the appeal period confirm that the Veteran is treated and taking medication for his hypertension. In an application for TDIU filed in October 2007, the Veteran stated that he had worked from 1946 to 1965 as a service station attendant. He indicated that he finished the sixth grade and did not have any additional education or training since he stopped working. He did not indicate why he left his job as a service station attendant in 1965, though he indicated that it was not due to disability. He indicated that he had not worked since 1965 or attempted to obtain work since that time. In October 2009, the Veteran underwent a VA examination for his joints. In that examination, the Veteran reported severe limitation of his mobility due to his back. He was able to manage activities of daily living and grooming, though he was not able to do any type of physical activity, such as work around the house. The Veteran also stated that he had a stroke four or five years prior to that examination with involvement of the left side of his face. He stated that he had numbness and weakness in his left arm and persistent left leg numbness. The Veteran stated that he "basically sits around and watches TV most of the day" and that he was able to drive without difficulty. During that examination, the Veteran reported that he had worked since discharge from service in February 1946 at a service station. He stated that he worked there until he was 62 years old. He stated that after that he worked for a short-time at Wal-Mart, but that he was not currently working. The Veteran also underwent a VA examination for his hypertension in October 2009. At that time the Veteran indicated that he did not have chest pain or dyspnea. The VA examiner noted that the Veteran had some exertional dyspnea, such as when climbing stairs, but noted that the Veteran was 83 years old. The Veteran reported that he may have had a stroke in the past. The Veteran further indicated that climbing stairs to his second-story apartment causes him shortness of breath. He reported that he does not help with in-home chores and he does not have any outside chores to attend to. He stated that he drives and attended church every week. The Veteran stated that he retired at age 65 as a service station attendant. The VA examiner related the Veteran's hypertension, which he noted was diagnosed in 1969, to increased blood pressure readings (pre-hypertension) in service. An assessment of hypertension, "controlled," was rendered. As noted above, the Veteran does not meet the schedular criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a). The remaining issue in this case is whether the Veteran's sole service- connected disability renders him unable to perform the acts required by any type of gainful employment to warrant extraschedular consideration, in light of 38 C.F.R. § 4.16(b). Here, there is absolutely no indication of an exceptional or unusual disability picture due to hypertension. While the October 2009 VA examiner did not specifically state that hypertension did not result in unemployability, the examiner did specify that such disability was "controlled." Such an assessment is certainly incompatible with an exceptional or unusual disability picture; the unambiguous nature of this assessment also renders this examination fully adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has submitted no other competent medical evidence to support the conclusion that hypertension, in and of itself, results in a sufficiently exceptional or unusual disability picture to warrant consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Indeed, the Veteran's May 2007 statement tends to undermine any claim that hypertension, in and of itself, is what causes his unemployability, as he attributed such unemployability to his nonservice-connected back disorder. While it is unfortunate and regrettable that the Veteran has a host of other health problems that impact his ability to be employable, those medical problems-particularly the back and lower extremity problems-are not service-connected disabilities. Nonservice-connected disabilities and the Veteran's age cannot be used to establish unemployability for compensation purposes. Accordingly, the Veteran does not meet the requirements for TDIU under 38 C.F.R. § 4.16, and the preponderance of the evidence is against a conclusion that his service-connected disability alone prevent him from obtaining or retaining gainful employment. As such, referral for consideration of extraschedular entitlement to TDIU is not warranted, and the Veteran's claim of entitlement to TDIU is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 56 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs