Citation Nr: 1120168 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 03-22 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sonnet Gorham, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board remanded the claim in February 2006, October 2006 and January 2008 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal was assigned to the undersigned by the Chairman in 2006. Effective on February 23, 2011, I was designated by the Secretary to serve as Acting Chairman of the Board, pursuant to 5 U.S.C. § 3345. Under 38 U.S.C.A. § 7102(b), proceedings before the Board may not be assigned to the Chairman as an individual member. The issue then arises as to whether I may continue on the case or must assign the proceeding to an expanded panel of at least three Board members, including myself. While this is a matter of first impression, I conclude that the law does not require reassignment in these circumstances. It is assumed, for purposes of this analysis, the provisions applicable to the Chairman would also apply to the Acting Chairman during his or her tenure in that capacity. The operative provision, 38 U.S.C.A. § 7102(b), specifies that "[a] proceeding may not be assigned to the Chairman as an individual member." In fact, this proceeding was assigned to me years ago, in my capacity as an individual member of the Board. Hence, there has been no assignment to the Acting Chairman. Nothing in the statute expressly requires reassignment to a panel if the individual Board member who had been assigned the proceeding later becomes the Chairman or is designated as Acting Chairman. Further there is some indication, at least by analogy, that Congress intended that an individual assigned to make a determination in an appeal may proceed do so even after that individual's status changes. (See, e.g., 38 U.S.C.A. § 7101(c)(1)(B)(an individual designated as an acting Board member may continue to serve in that capacity in making a determination on proceeding which he or she was assigned, notwithstanding the termination of the period of designation of that individual as an acting Board member.) In view of the above and in furtherance of the Board's mission to decide appeals in a timely manner, 38 U.S.C.A. § 7101(a), I will continue make the determination in this proceeding as an individual member of the Board. FINDINGS OF FACT 1. The Veteran's sole service-connected disability is his right eye disability, rated 30 percent disabling. 2. The medical and other evidence of record does not demonstrate that the Veteran's service-connected right eye disability, alone, renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that his service-connected right eye disability renders him unemployable. Specifically, he contends that, as a result of poor visual acuity in his right eye, he can no longer obtain a commercial driver's license necessary to operate a septic truck to service oil rigs. See the Veterans' October 2001 statement. Duties to Notify and Assist In correspondence dated in November 2006 and April 2008, the agency of original jurisdiction (AOJ) notified the Veteran pursuant to 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2010). Specifically, the 2006 notice informed the Veteran of information and evidence necessary to substantiate his claim for a TDIU. It included notice of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. Both the 2006 and 2008 notices informed the Veteran of information and evidence that governs the assignment of effective dates. Both notices were issued after the initial denial of the claim. Neither the Veteran nor his representative has alleged that this error is harmful. Regardless, the Board finds that the Veteran has not, in fact, been prejudiced by this timing error. Subsequent to the notices, in the December 2010 supplemental statement of the case (SSOC), the AOJ readjudicated the claim based on all the evidence. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Accordingly, the duty to notify has been satisfied. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been obtained and associated with the claims file. All identified and available post-service treatment records have been secured. Additionally, the Board observes that in three remands, the Board directed the AOJ to conduct additional development with respect to the Veteran's claim. Specifically, the Board directed the AOJ to provide the Veteran with an appropriate TDIU application form, as well as appropriate notification pursuant to 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2010). A review of the record indicates that the AOJ has completed the development requested by the Board in its remand as to this issue. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran has been provided with appropriate notification of the evidentiary requirements and responsibilities for the TDIU claim. Additionally, the AOJ furnished the Veteran with a TDIU application form in April 2008, which the Veteran completed and submitted in June 2008. Furthermore, the Veteran was medically evaluated in 2006 in connection with his current claim, and there are prior-dated examination reports of record addressing the Veteran's employability. The Board finds that the examinations of record are adequate and provide sufficient evidence for the Board to determine whether the Veteran is unemployable as a result of his service-connected right eye disability. In all, the duty to assist has been fulfilled. TDIU A TDIU rating 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, 4.16(a) (2010). In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (Court) has indicated that the unemployability question, or a veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this regard, consideration may be given to a veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). Finally, 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, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2010), see Faust v. West, 13 Vet. App. 342 (2000). The Veteran is service-connected for status post cataract extraction of the right eye due to keratoplasty with secondary prolapse of the iris and corneal transplant, rated as 30 percent disabling. He is also in receipt of special monthly compensation based on loss of use of one eye having only light perception. There are no other service-connected disabilities. Accordingly, as the sole service-connected disability is not ratable at 60 percent or more, he does not meet the criteria for consideration of TDIU on a schedular basis. See 38 C.F.R. § 4.16(a) (2010). In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for a TDIU should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2010). In essence, such referral is warranted when a case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization which renders impractical the application of the regular schedular criteria. See 38 C.F.R. 3.321(b) (2010). The Veteran's employment history reflects that he previously worked as a corporate president/manager from 1976 to 1990, provided septic service to oil rigs from 1990 to 2002, then worked as an equipment operator from 2002 until 2006. He denied having completed any other education or training on his June 2008 TDIU application; however, the Veteran previously indicated on a February 1993 TDIU application that he completed two years of aircraft mechanic training. In the instant case, the competent evidence of record does not support the premise that the Veteran's service-connected right eye disability markedly interferes with his employment as to render impracticable the application of the regular schedular standards. In this regard, the Veteran has previously testified that his service-connected right eye disability precludes him from working, in that he is unable to pass a Department of Transportation physical examination to obtain a commercial driver's license. See the March 1991 RO hearing transcript, page 3. However, the competent medical evidence of record indicates that although the Veteran may be prevented from engaging in occupations which require that he operate a vehicle due to the service-connected right eye disability, he is not unemployable. In this connection, an October 1993 VA fee-basis examiner opined that the Veteran "would be able to perform most types of employment as long as a fine level of depth perception or fine motor coordination were not necessary." Also of particular significance is the opinion of the October 1993 VA examiner, who opined that: The Veteran apparently has management experience and other backgrounds that would allow him to take a desk type job, in addition, and he is obviously quite bright and has good verbal skills. He could possibly be retrained for jobs that would not be dependent on getting his C[ommerical] D[river's] License or driving license, in general. The Board realizes that since the time of the October 1993 examinations, the Veteran's right eye visual acuity has decreased significantly, from 20/400 to 5/200 as measured at the time of the March 2006 VA eye examination. However, as detailed above, the Veteran remained steadily employed during this period. Moreover, the March 2006 VA examiner, while acknowledging that the Veteran would have "great difficulty holding down a job" due to his service-connected right eye disability, made no finding that the right eye disability completely precluded employment. Considering the above evidence, which reflects that the Veteran is still capable of engaging in sedentary employment in conformity with his prior work experience as a manager, the Board does not find that the Veteran's right eye disability causes marked interference with employment which is sufficient to warrant referral for consideration of an extraschedular rating. To the extent the Veteran argues that his service-connected right eye disability is causing his claimed unemployability, in light of the competent medical evidence against the claim, his statements which are not rooted in medical expertise are far less probative on this issue. Moreover, there is no evidence of an exceptional or unusual clinical picture, or of any other factor which would allow for the assignment of an extraschedular rating such as frequent hospitalizations. Specifically, the record does not show that the Veteran has required any hospitalizations related to his service-connected disability during the appeal period. The Board also emphasizes that in June 2003, the RO referred a then-pending claim for an increased rating for the right eye disability for extraschedular consideration, which was denied by the Director of Compensation and Pension in July 2003. The Board does not in any way wish to downplay the significance of the Veteran's service-connected disability, and acknowledges that he is essentially blind in the right eye. The Board finds, however, that the symptomatology associated with the right eye disability is appropriately compensated via the 30 percent rating and special monthly compensation which has been assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, while in no way diminishing the obvious impact that the right eye disability has on the Veteran's industrial capacity, this is already taken into consideration in the assigned rating. In conclusion, for the reasons and bases expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. Contrary to the assertions of the Veteran's representative, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs