Citation Nr: 1127546 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 07-25 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty for training in the Massachusetts National Guard from January to April 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from October 2005 and January 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that denied increased ratings for status post second and third degree burns with residual symptomatology right hand and forearm, status post second and third degree burns of the left hand; and right carpal tunnel syndrome (CTS). In December 2007 the Veteran provided testimony before the undersigned at the RO (Travel Board hearing). A transcript of the hearing is of record. In April 2008, the Board denied a rating in excess of 10 percent for right CTS; and increased the ratings for residual burns on his right hand and forearm as well as his left hand to 40 and 30 percent disabling on a schedular basis. The Board remanded the increased rating claims for referral to the Director of VA's Compensation and Pension Service or Under Secretary for Benefits for consideration of extraschedular ratings in accordance with 38 C.F.R. § 3.321(b) (2010). In June 2009, the Board denied entitlement to an extraschedular evaluation for these disabilities and these matters are no longer on appeal. In January 2010, the Board denied entitlement to an extraschedular evaluation for right CTW and this matter is no longer on appeal. In the same January 2010 decision, the Board remanded entitlement to TDIU for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that TDIU is an element of all claims for an increased rating). This development is complete; entitlement to TDIU is the only remaining matter currently before the Board and will be addressed in the decision below. FINDINGS OF FACT 1. The Veteran is service-connected for: status post second and third degree burns with residual symptomatology right hand and forearm rated 40 percent disabling, effective April 6, 2005; status post second and third degrees burns left hand rated 30 percent disabling, effective April 6, 2005; and CTS rated 10 percent disabling, effective June 10, 2002. His combined disability rating is 70 percent. 2. The Veteran has employment experience as a chef and chef supervisor. He attended culinary school for one year and obtained a certificate to become a chef. He also went to school for six months for culinary management; he has not lost any time from work during the past 12 months. 3. The Veteran's service-connected disabilities do not preclude gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). 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, 5126 (West 2002 & Supp. 2010) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that a TDIU is an element of all claims for an increased rating. The Court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit has overturned the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a June 2005 letter, issued prior to the initial adjudication of the increased rating claims, and in June 2005, May 2006, July 2007, the RO or AMC notified the Veteran of the evidence needed to substantiate his claims for increased ratings. The letters told the Veteran that he could substantiate the claims with evidence that the disability had worsened. They satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. In May 2006 and July 2007 letters, the Veteran was notified of all elements of Dingess notice, and the surviving elements of Vazquez-Flores notice, including the disability- rating and effective-date elements of the claims. These letters notified the Veteran that when determining the disability rating VA considered the impact of the condition and symptoms on employment. He was also advised that tell or give to VA recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how his condition affected his ability to work; or statements discussing his disability symptoms from people who have witnessed how they affected him. In a January 2010 letter the RO provided the Veteran with a VA Form 21-8940 and explained what was needed to establish entitlement to TDIU. There was a timing deficiency with some of the notice, in that it was provided after the initial adjudication of the underlying increased rating claims. The timing deficiency was cured by readjudication of the claim in a May 2011 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained all of the identified post-service VA treatment records. In addition, he was afforded proper VA examinations pertaining to the effects of his service-connected disabilities on employment. Barr v. Nicholson, 21 Vet. App. 303 (2007). The January 2011 VA examination also reflects compliance with Board's January 2010 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The provisions of 38 C.F.R. § 3.103(c)(2) imposes, two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App.488 (2010) (per curiam). At the Travel Board hearing the issues were discussed and the Veteran was asked about his employment history and the circumstances of his current unemployment. He was asked about his treatment providers in order to ascertain whether there was additional evidence he could submit. Based on his testimony the Board undertook to develop the TDIU claim, and sought opinions and evidence in support of that claim. The appeal is thus ready to be considered on the merits. Analysis VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service connected condition and advancing age, which would justify a TDIU due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has been granted service connection for the following disabilities: status post second and third degree burns with residual symptomatology right hand and forearm rated 40 percent disabling, effective April 6, 2005; status post second and third degrees burns left hand rated 30 percent disabling, effective April 6, 2005; and right carpal tunnel syndrome (CTS) rated 10 percent disabling, effective June 10, 2002. His combined disability rating is 70 percent. The Board acknowledges that as the Veteran has a single disability rated as 40 percent disabling or more, he meets the percentage criteria for a TDIU laid out in 38 C.F.R. § 4.16(a). In any event, VA policy is to grant a TDIU in all cases where service connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence shows that the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience. On review of the record, in April 2005, the Veteran submitted a statement indicating that his medical conditions had become worse and were greatly impairing his ability to work. On July 2005 VA examination, the Veteran stated that he was able to perform his job requirements as a chef and had no loss of muscle strength in either hand or arm. On December 2006 VA examination, the Veteran reported that since discharge from the Army in 1989, he had been employed as a chef. During his December 2007 Travel Board hearing, the Veteran testified that he was not working. He reported that he had had an asphalt company, but could not do this job because of his hand disabilities. If he tried to pick up a shovel to dig into the ground, there was a lot of pain in his hands. When asked about participating in VA's Vocational Rehabilitation Program, he indicated that he went to a culinary school for one year and had obtained a certificate to become a chef. It appears that he also went back to school for six more months for culinary management. In regards to being able to perform his job duties, he stated that he could not pick up a big pot and would drop glasses out of his hand because he couldn't feel his grip. On January 2011 VA general medical examination, the Veteran was reportedly employed as a chef/chef supervisor. He reported that he had been in his current employment for one to two years. He had not lost any time from work during the past 12 months. Prior to being a supervisor for chefs, he had worked as a cook and chef. He was leaving the following week to supervise cooks for United States forces in Afghanistan. The pertinent diagnosis was status post burns of the bilateral hands, mild hyperpigmentation with no residual scarring. Per the exam, and discussion with the Veteran, the examiner found that the hand burns/injuries do cause some symptoms, but there is no functional impact for either physical or sedentary employment. The examiner commented that it was unknown why an exam for TDIU was ordered of a Veteran who was employed full-time. On January 2011 VA orthopedic examination, the Veteran reported that objects occasionally slipped out of his hands unintentionally. He again reported that he worked as a supervisor chef and was not required to do any lifting. He had pain and weakness and was unable to make a grip. His usual occupation was listed as a chef for military units in Afghanistan. He was currently employed full-time. He had been in his current occupation for less than one year, but had not lost time from work during the last year. The examiner opined that the Veteran was able to work as a supervisor chef in a full-time position. The examiner added that it seemed that the Veteran had active carpal tunnel syndrome with some symptomatology affecting dexterity. In his current position, however, he was not required to do lifting or repetitive motion. The examiner found, that the Veteran was fit for sedentary work and physical work that did not require lifting, repetitive motion, or the use of vibrating tools. The evidence indicates that the Veteran was not working at the time of his December 2007 hearing and that he could no longer work with his asphalt company due to pain in his hands when using a shovel. He has; however, been able to maintain full time employment as a chef and chef supervisor with the same level of disability that was present at the time of the December 2007 hearing. Thus, even though he was unemployed at the time of the hearing, the record does not show that he was incapacitated from any employment consistent with his education and experience. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough for a grant of a TDIU. In itself, a disability rating is recognition that the impairment makes it difficult to obtain or keep employment. But the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). Id. The Veteran has had a well documented ability to maintain full time employment before and after the hearing and there is no evidence that the service connected disabilities were worse at the time of the hearing than at other times during the appeals period. Although, the Veteran has demonstrated an ability to work full time during the appeal period, a question remains as to whether this employment was marginal. Employment is considered marginal where earnings are below the poverty rate for one person, or there is other evidence showing that the employment is sheltered. 38 C.F.R. § 4.16(a). There is no evidence that the Veteran's full time employment pays less than the poverty rate for one person or that the employment is sheltered. Indeed, the Veteran's employment in a combat theater and supervising and training others seems anything but sheltered. The term "substantially gainful occupation "refers to, at a minimum, the ability to earn 'a living wage.'" Bowling v. Principi, 15 Vet. App. 1, 7; quoting Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The Veteran's ability to sustain full time responsible employment shows that he is capable of earning a living wage. The weight of the evidence is against a finding that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for a TDIU must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to a TDIU is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs