Citation Nr: 1032824 Decision Date: 08/31/10 Archive Date: 09/08/10 DOCKET NO. 06-00 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD R. Morales INTRODUCTION The Veteran had active service from October 1954 to November 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal was remanded for additional development in September 2008, April 2009, and January 2010. 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 rheumatic heart disease with mitral stenosis; sub acute bacterial endocarditis (heart disability), rated as 60 percent disabling. 2. The Veteran's service-connected disability is not shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.1-4.14, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By a letter dated in October 2008, the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the Veteran was provided with the requisite notice in the letter dated in March 2006. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letter and other correspondence provided by the RO. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and VA medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. TDIU Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2009). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is 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, the disability shall be ratable at 60 percent or more, and if there are two or more 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 (2009). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a); 4.19 (2009). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In this case, the Veteran has been granted a 60 percent disability rating for his heart disability. The Veteran has no other service-connected disabilities. As the Veteran has a single disability rated at 60 percent, he meets the percentage criteria laid out in 38 C.F.R. § 4.16(a). The remaining question before the Board, therefore, is whether the Veteran is unemployable by reason of his service-connected disability alone, taking into consideration his educational and occupational background, such that a TDIU rating may be assigned. The Veteran was a factory worker up until his retirement in 1998. He retired because he became eligible for retirement. The Veteran attended a cardiac VA examination in December 2004. He reported no noticeable symptomatology. No limitations on his occupation were found. Examination revealed a heart murmur. There was no evidence of congestive heart failure. Rheumatic heart disease with mitral stenosis and insufficiency was diagnosed. The Veteran attended a VA examination in March 2010. The claims file and medical records were reviewed. The Veteran reported recurrent dyspnea with minimal exertion, fatigue, shortness of breath, dizziness, and oppressive chest sensation. Continuous medication was required for his heart disability. Examination revealed no pulmonary hypertension or congestive heart failure. Stress tests results were an estimated METS of 7 to 8. Electrocardiogram did not show arrhythmia or ischemia. There was no evidence of adenosine induced myocardial ischemia. Heart rate and blood pressure were normal. Heart size was normal. Ejection fraction was 50 percent. The effects on the Veteran's usual occupation would be lack of stamina, weakness, and fatigue. However, the examiner found that the heart disability did not preclude the Veteran from obtaining, performing, and securing, a financially gainful employment, as his METS were 7 or 8, ejection fraction was 50 percent, and stress test was negative for ischemia. The examiner opined that the limitations on physical activity were slight. VA outpatient treatment record were also reviewed. These confirm that the Veteran takes heart medications and are consistent with the findings of the VA examinations. After a thorough review of the record, the Board finds that the competent medical evidence of record does not demonstrate that functional limitations imposed by the Veteran's service-connected heart disability preclude his performance of substantially gainful employment. The evidence of record shows that the Veteran was capable of engaging in substantially gainful employment until he became eligible for retirement. There is no indication that the Veteran retired due to inability to work or difficulties caused by his heart disability. In fact, the Veteran reports that he simply became eligible for retirement. Were the Veteran to seek new employment, there is no indication that the Veteran cannot engage in any substantially gainful employment a field for which he may be qualified. There is no competent evidence of record showing that he is unable to maintain any form of substantially gainful employment due to the severity of his service-connected disability The Board finds probative the March 2010 opinion of the VA examiner that concluded the Veteran's heart disability did not preclude him from obtaining, performing, and securing, a financially gainful employment. This opinions is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board acknowledges that the Veteran has difficulty with his service-connected heart disability, but these factors are reflected in the current 60 percent disability rating. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While his service- connected disability may cause some economic inadaptability, in that he may need to rest more often or may not work as quickly, this is taken into account in the assigned disability ratings. In this case, there is no showing of total individual unemployability based solely on his service-connected disability Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that which he experiences as a result of his service-connected disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports that he meets the criteria for a TDIU, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). Based upon the foregoing, the Board concludes that the preponderance of the evidence does not demonstrate that the Veteran's service-connected disability alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. Although he has not been employed since 1998, the preponderance of the evidence is against finding that his service-connected disability has resulted in unemployability. Rather, it appears it was his choice to retire. In the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned 60 percent disability rating, the preponderance of the evidence is against his claim. Accordingly, a TDIU due to service-connected disability under the provisions of 38 C.F.R. § 4.16(b) is not warranted. ORDER Entitlement to TDIU is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs