Citation Nr: 1124348 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 06-03 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating, based on individual unemployability, due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran had active service from April 1946 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This matter was previously before the Board in September 2009 and February 2011 at which time it was remanded for additional development. It is now returned to the Board. 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). FINDINGS OF FACT 1. The Veteran has only established service connection for pterygium of the right eye, rated 10 percent disabling. 2. The most probative evidence of record does not indicate that the pterygium of the right eye prevents the Veteran from obtaining and/or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In the present matter, September 2009 and February 2011 correspondences, provided to the Veteran before the adjudication and reajudication of his claim, are legally sufficient and no further notice under the VCAA is necessary. VA has 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 & Supp. 2010) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. Further, the Veteran has been medically evaluated in conjunction with his claim, and the RO/AMC has substantially, if not fully, complied with the September 2009 and February 2011 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the duties to notify and assist have been met. During the pendency of the Veteran's claim seeking an increased disability rating for pterygium of the right eye, he submitted a February 2006 Appeal to Board of Veterans' Appeals (VA Form 9), indicating this condition rendered him unemployable, making the present TDIU claim part-and-parcel of that matter. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Significantly, in February 2011, the Board denied the Veteran's claim for a rating in excess of 10 percent for pterygium of the right eye. Therefore, the remaining issue of the entitlement to a TDIU will be the center of the present analysis. TDIU Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability rated 60 percent disabling or more, or as a result of two or more disabilities, provided at least one disability is rated 40 percent disabling or more and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Initially, the Veteran does not meet the schedular criteria for an award of TDIU because the Veteran's sole service connected condition pterygium of the right eye is only rated 10 percent disabling. Therefore, the Veteran does not meet the requirements as to warrant schedular entitlement to a TDIU and, to this extent, the claim is denied. See 38 C.F.R. § 4.16(a). 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 disability(ies) shall be rated totally disabled. In the case of Veterans who are, in fact, unemployable by reason of a service connected disability(ies), but who fail to meet the aforementioned schedular criteria, those cases should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. See 38 C.F.R. § 4.16(b). As such, the Board must also consider whether the Veteran is, in fact, unemployable. In making this determination, the analysis centers on whether the service connected condition is of such a severity as to render the Veteran unemployable. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Importantly, in making this determination, VA may properly consider factors such as education, specialized training and prior work experience(s); however, the Veteran's age and/or impairments caused by non-service connected conditions are not relevant. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Evidence that a Veteran is unemployed and/or has difficulty obtaining employment does not in-and-of itself establish entitlement extra-schedular TDIU consideration because the ultimate question centers on whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Upon considering the evidence of record, both medical and lay, the Board finds that the Veteran's service connected pterygium of the right eye has not, in fact, rendered him unemployable, at any time during the period under review. The principal evidence that the Veteran's service connected pterygium of the right eye, in fact, renders him unemployable are his own statements. In the present circumstance, the Veteran maintains that his service connected pterygium of the right eye renders him unemployable as a truck driver, as the condition prevents him from driving at night and will prevent him from passing the necessary driving examination. See VA Form 9, Feb. 1, 2006. Without question, the Veteran is competent and credible to provide an account of his employment history and how his service connected symptomatology impacts his ability to perform his usual occupation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, when considered in conjunction with the other evidence of record, the Board finds that the Veteran's opinion that his service connected condition, in fact, renders him unemployable is of limited, if any, probative value. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to). When making determinations of this nature, competent medical evidence and opinions are highly probative. The most probative evidence of record is the March 2011 addendum opinion, provided by the VA examiner who conducted the relevant July 2010 VA examination. In this March 2011 opinion, the examiner opined that the Veteran's service connected condition "causes no impact on his ability to work or on his daily life activities," and stated that his pterygium of the right eye "does not in any way prevent [the Veteran] from seeing though his visual axis." This opinion reflects the examiner's consideration of the July 2010 VA examination findings, pertinent medical evidence and the Veteran's competent and credible account of symptomatology and employment. Ultimately, the Board finds this negative opinion to be highly probative because it (i) reflects acceptance of the Veteran's account of symptomatology and employment, (ii) provided clear medical reasoning and logic to support he provided opinion and (iii) is generally consistent with other pieces of medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Thus, the most probative evidence of record also indicates that the Veteran is not, in fact, rendered unemployable due to his service connected condition. In sum, the Veteran does not meet the schedular criteria for the assignment of a TDIU. What is more, the most probative evidence of record weighs heavily against any finding that the Veteran's service connected pterygium of the right eye, in fact, renders him unemployable. Accordingly, a basis upon which to grant the Veteran claim for a TDIU has not been established and the claim is denied. As the greater weight of the evidence is against the Veteran's TDIU claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Thus, the Veteran's claim for entitlement to a TDIU is denied. ORDER The claim for a TDIU is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs