Citation Nr: 1124346 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 02-05 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 7, 2002. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to May 1962 and from May 1963 to October 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to a TDIU. The Veteran appealed this determination. In a July 2002 rating decision a TDIU was granted; however, the effective date of this grant was determined to be May 7, 2002. Thus, the matter of the Veteran's entitlement to a TDIU prior to May 2002 remained in appellate status. In June 2003, the Veteran testified at a Travel Board hearing. The case was then remanded in December 2004. In January 2007, the Veteran was sent a letter inquiring whether he wanted another hearing before a Veterans Law Judge (VLJ), as the VLJ who held the previous Travel Board hearing had left employment with the Board. The Veteran did not respond. Therefore, per the notification letter, the Board proceeded without an additional hearing; however, the transcript of that hearing is of record. The case was remanded again in June 2007, July 2008, and March 2010. The case now returns to the Board once again for appellate review. FINDINGS OF FACT 1. Prior to July 1, 1999, evidence of record does not establish that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities alone. 2. From July 1, 1999, the evidence demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to July 1, 1999, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(b) (2010). 2. From July 1, 1999, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Subsequent to the initial adjudication of the Veteran's claims, a letter dated in August 2007 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claims by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the August 2007 letter that addressed all notice elements. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in March 2008, after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran's service treatment records, private treatment records, VA treatment records, Social Security Administration (SSA) records, VA authorized examination reports, lay statements, and hearing transcripts have been associated with the claims file. The Board notes that no medical examination has been conducted and no medical opinion was been obtained during the period on appeal with respect to the Veteran's claim for a TDIU prior to May 7, 2002. However, as the Board has concluded that there is sufficient medical evidence in the claims file to decide the issue on appeal, further remand for an examination is not warranted. See 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Applicable Law Historically, the Veteran filed a claim for TDIU on February 4, 1998. This claim was denied in March 1998 and notice of the decision was provided to the Veteran on March 10, 1998; the Veteran subsequently requested a local hearing and was afforded one in July 1998. At that time, the Hearing Officer stated, "This case is not in an appeal status. We have had discussion concerning this prior to the hearing. It has been indicated that should the Veteran desire to file an appeal, this will be done at a later date. Is that correct?" The Veteran replied, "Yes sir." Subsequently in a February 1999 decision, the Hearing Officer continued the denial of entitlement to a TDIU. The Veteran then filed a claim for increase that was received on March 29, 1999, more than one year after notice of the March 1998 rating decision. The Veteran filed another VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in July 1999. However, prior to that time, the Veteran had not filed a valid and timely notice of disagreement with the March 1998 decision. While a liberal standard is applied in determining whether a communication constitutes a Notice of Disagreement (NOD), the communication in question must at least refer to the rating decision in question and be in terms that can be reasonably construed as expressing disagreement or dissatisfaction with the determination and a desire for appellate review. 38 C.F.R. § 20.201; Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991); see also Beyrle v. Brown, 9 Vet. App. 24, 28 (1996). The Veteran's submissions prior to this date, including his hearing testimony, do not meet this standard particularly given the discussion at the Veteran's personal hearing; thus, the March 1998 rating decision became final. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009) the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As such, the Board has construed the March 1999 claim for increase as a claim for a TDIU, and the Board must consider the Veteran's claim for a TDIU within the one-year period preceding the date of receipt of the claim for increased compensation, or from March 29, 1998. See 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The current claim was denied in a July 1999 rating decision, and the Veteran then filed a notice of disagreement (NOD) in October 1999, seeking extraschedular consideration. An SOC was issued in April 2002, and the Veteran subsequently filed his VA Form 9 in May 2002. The RO then issued the July 2002 rating decision which granted TDIU, effective May 7, 2002. The Veteran then filed an additional NOD in August 2002, arguing the effective date of the TDIU should be July 1, 1999. In a subsequent December 2002 VA Form 9, the Veteran argued that the effective date should be June 28, 1999. The law provides that a total disability rating based on individual unemployability due to one or more service-connected disabilities 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 such service-connected disabilities. 38 C.F.R. 3.340, 3.341, 4.16. 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. If there is only one such service-connected disability, it must be ratable at 60 percent or more, and if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more with a combined rating of 70 percent or more. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service- connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). As discussed below, this case was referred for extraschedular consideration by the Board. Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disability on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a TDIU case is whether a veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed for nonservice-connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. In discussing the unemployability criteria, the Court has indicated that, in essence, the unemployability question, that is, the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). 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); see also Faust v. West, 13 Vet. App. 342 (2000). The Board must consider, pursuant to the governing law and regulations as set forth above, whether there was evidence within the one year prior to March 29, 1999, the date of the Veteran's claim, which showed that it was factually ascertainable that the Veteran was unemployable. The record indicates that service connection has been established for dysthymic disorder with history of hysterical components, assigned a 30 percent rating from September 1983, a 50 percent rating from March 1999 and a 70 percent rating from May 2002; compression fracture, T4, T5, T6, assigned a 40 percent rating from November 1995 and a 20 percent rating from May 1999; and bicipital tendonitis of the right shoulder, assigned a 10 percent rating from May 1999. The Veteran's combined disability rating was 60 percent from November 1995; and 80 percent from May 2002. As such, the Board notes that the Veteran met the schedular criteria for TDIU from May 7, 2002 onward, but not before that time as it is clear that during the period from March 29, 1998 to May 6, 2002, the Veteran did not have a combined 70 percent rating. The record also establishes that the Veteran is a college graduate with some subsequent computer training. The record also reflects several significant nonservice-connected disabilities including a lumbar spine disability and coronary artery disease. C. Evidence The Veteran has submitted evidence that he was unemployable prior to May 7, 2002, due to service-connected conditions. A letter dated November 1997 from the Delta Faucet Company thanked the Veteran for interviewing with them for a job, but stated that the stressful nature of the position and long hours of required sitting would not be in the Veteran's best interest in light of his prescribed health conditions. Private treatment records from Dr. R.B.S., also dated November 1997, reflect that the Veteran was placed on lifting, bending, pulling, and pushing restrictions of 25 pounds each, due to chronic thoracic and lumbar back pain. These restrictions were considered permanent. A Department of Defense memorandum dated January 1998 indicates that the Veteran was separated from his employment as an aircraft mechanic due to permanent restrictions placed on him by his private physician. These restrictions prevented the Veteran from performing over 80 percent of his assigned duties. A February 1998VA Form 21-4192 completed by the Veteran's former employer, the Department of the Air Force, indicated that the Veteran was unable to perform his duties as an aircraft mechanic due to his medical condition. It was further noted that the Veteran had been accommodated by the employer until final action for separation in that no physical or stressful functions were performed and that the Veteran answered the telephone and performed work as a file clerk which were employment concessions due to back and nerve disabilities. Medical disability retirement was approved beginning February 1998. The Veteran testified at an RO hearing in July 1998. He stated that he had been let go from his job because his prescribed physical restrictions prevented him from performing his work. He also stated that his employer tried for several months to find him another job, but was unsuccessful. The Veteran also submitted a January 1999 certification that he was considered "severely disabled" under the applicable state regulations by the Oklahoma Department of Rehabilitation Services. A July 1999 opinion from Dr. R.B.S. stated that, due to the Veteran's thoracolumbar spine condition and associated pain, the Veteran was "not capable of gainful employment and is at least moderately impaired from his chronic back injury, as well as degenerative disc disease..." Social Security Administration (SSA) records include a May 2000 decision which found that the Veteran had engaged in no substantial employment since February 1998 and had severe limitations due to degenerative disease of the spine. While the Veteran was found to retain the residual functional capacity for light work, the decision further noted that the Veteran was unable to return to his past relevant work, and that he did not have any acquired work skills which were transferable to the skilled or semi-skilled activities of other work. The matter was referred to VA's Compensation and Pension (C&P) Service for consideration of an extra-schedular TDIU prior to May 7, 2002. In a July 2010 memorandum, the C&P Service stated that the evidence did not establish entitlement to an extraschedular grant of TDIU under 38 C.F.R. § 4.16(b) prior to May 7, 2002. D. Analysis Based on the evidence of record, the Board finds that a TDIU is not warranted prior to July 1, 1999. The evidence during that period demonstrates that the Veteran was unable to perform his duties as an aircraft mechanic, had lifting restrictions of 25 pounds, and was turned down for a job due to his disabilities. While this evidence clearly shows that the Veteran's disabilities interfered with his occupational duties as a mechanic, it does not show that he was incapable of performing the physical and mental acts required by employment generally. However, as of July 1, 1999, the evidence indicates that the Veteran was unable to secure gainful employment. One of his treating physicians reached such a conclusion in a July 1, 1999 opinion, based on his treatment of the Veteran's service-connected thoracic spine disability and nonservice-connected lumbar spine disability. Moreover, SSA records show that the Veteran was unable to return to his past relevant work, and that he did not have any acquired work skills which were transferable. Although the SSA's decision regarding appellant's unemployability is not controlling for VA determinations, it is certainly "pertinent" to the present claim. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). This evidence is relevant to the determination of the Veteran's ability to secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16(c). Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The Board notes that much of the evidence focuses on the impairment caused by the Veteran's service-connected thoracic spine disability and his nonservice-connected lumbar spine disability, often referred to in the record as the Veteran's "back". However, the Board finds that the impairment due to each disability is not clearly delineated in the objective evidence of record. Thus, to the extent that the findings and resultant impairment have been attributed to the "thoracolumbar spine", the Board has resolved doubt in the Veteran's favor. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Therefore, these findings, when viewed collectively with evidence from the entire period on appeal, indicate that the Veteran was unable to pursue gainful employment as of July 1, 1999, due to service-connected disabilities. While the July 2010 C&P memorandum found that an extraschedular grant of TDIU under 38 C.F.R. § 4.16(b) was not warranted, the Board finds that the overall weight of the evidence supports the grant of a TDIU from July 1, 1999. ORDER Entitlement to a TDIU is denied prior to July 1, 1999. Entitlement to a TDIU is granted from July 1, 1999, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs