Citation Nr: 1145461 Decision Date: 12/13/11 Archive Date: 12/21/11 DOCKET NO. 06-34 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from November 1975 to November 1979 and from December 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision from the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin. This matter was previously before the Board in April 2010 at which time it was remanded for additional development. It is now returned to the Board. In a July 2011 letter, the Veteran requested rating increases for his service-connected bilateral hip disabilities. Such matters have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDING OF FACT The Veteran's service-connected disabilities (residuals of a right ankle sprain, pes planus of the right foot associated with residuals of a right ankle sprain; osteoarthritis of the right hip associated with residuals of a right ankle sprain; osteoarthritis of the left hip associated with the osteoarthritis of the right hip; hypertension; and hemorrhoids) are rated 70 percent combined; the first three disabilities share a common etiology, but are not shown to be of such nature and severity as to preclude him from engaging in any regular substantially gainful employment, to include sedentary employment. CONCLUSION OF LAW The criteria for the establishment of entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011), 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. 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 advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication. An April 2005 letter explained the evidence necessary to substantiate a TDIU claim, the evidence VA was responsible for securing, and the evidence he was responsible for providing. The Veteran has had ample opportunity to respond/supplement the record; he has not alleged that notice in this case was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records are associated with his claims file. The Veteran has had numerous examinations regarding his service-connected disabilities, and pursuant to the April 2010 Board Remand, the RO arranged for a VA examination in June 2010. Significantly, in July 2011 correspondence, the Veteran stated that he and the VA examiner had a personal conflict during the examination and he felt that she was biased towards him. He requested a new examination at another VA facility. While the Veteran appears to question the professionalism of the physician, there is no indication that the physician's competence is in question. The Board finds no indication from the claims file that the June 2010 VA examination, which was conducted by a VA physician, was in any way deficient, or that the June 2010 VA examiner was not competent to perform the examination. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (holding that where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish that examiner's competency). As such, the Board finds that no prejudice results to the Veteran in adjudicating his claim on the evidence of record. The Board concludes that the June 2010 VA examination and opinion (considered along with reports of prior examinations) is adequate and substantially complied with the Board's remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial [i.e., rather than strict] compliance with the Board's remand instructions). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU may be assigned when the Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities (without regard to age). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's non-service-connected disabilities on his ability to function. The United States Court of Appeals for Veterans Claims (Court) has stated that In determining whether an appellant is entitled to a TDIU, the appellant's advancing age may not be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances in this case apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other Veterans with an similar combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment". The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In his March 2005 claim for a TDIU, the Veteran reported that he became unable to work in late 2004, and that he last worked full time in March 2005. He advised that he completed high school; and did not attend college or trade school. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities, which include (1) residuals of a right ankle sprain, rated at 30 percent, (2) pes planus of the right foot associated with the residuals of a right ankle sprain, rated at 20 percent, (3) osteoarthritis of the right hip associated with the residuals of a right ankle sprain, rated at 20 percent, (4) osteoarthritis of the left hip associated with osteoarthritis of the right hip, rated at 10 percent, (5) hypertension, rated at 10 percent, and (6) hemorrhoids, rated as noncompensable. As the first three disabilities resulted from a common etiology, namely the Veteran's right ankle sprain, they are considered as one disability with a combined disability rating of 60 percent. See 38 C.F.R. § 4.25. The combined rating for all of the Veteran's service-connected disabilities is 70 percent. Consequently, the schedular rating requirement for eligibility for a TDIU rating is met. 38 C.F.R. § 4.16(a) (2011). The analysis, therefore, progresses to whether the service-connected disabilities are of such nature and severity, and their associated disability picture so distinct from the average Veteran rated 70 percent disabled as to preclude the Veteran from participating in any regular substantially gainful employment, and render him individually unemployable. On June 2006 VA examination, the Veteran reported that he last worked in March of 2004 cleaning floors at a grocery store. He stated that he missed 20 to 25 days of work before he was fired. He reported that he lost the time off due to a combination of the foot, ankle, and hip pain. The Veteran stated that since that time, he had to give up activities due to increasing pain for his foot and hip. He stated that the pain had gotten to the point where he could no longer enjoy these activities. The examiner assessed hypertension that was controlled; pes planus of the right foot; normal right ankle; and osteoarthritis of the right hip. The examiner opined: "The Veteran's hypertension and hypertensive medications were [sic] not impair employment. The Veteran's ankle condition and ankle medication would not impair employment at all. The Veteran's foot condition and foot medication would require him to limit his walking and treading and climbing stairs. He could not walk on cluttered floors or slippery floors. He cannot stand for long periods of time. He could sit and he could reach. The Veteran's medications for his feet would not impair employment. The Veteran's hip condition however would limit his bending, crawling, kneeling, and stooping; it would limit him working on cluttered floors. It would limit his ability to reply quickly to emergency situations. He would be able to work with others. He would be able to do repetitive work that did not require any heavy lifting or carrying. None of the Veteran's disabilities or medications would impose any cognitive limitations." On June 2010 VA examination, the Veteran reported daily right ankle pain. He also reported that he was supposed to have bilateral hip replacements, but the surgery was being placed on hold. He reported weekly foot pain. The examiner reviewed the entire claims file. She assessed and opined: "Right ankle with current normal exam. The range of motion is similar on both sides, and is therefore thought to be normal for this individual. The x-ray does not currently show degenerative changes of the ankle. This condition would not limit his ability to undergo any form of labor. He does not note the use of medications for this condition; therefore, they would not be limiting to his employability. Severe bilateral osteoarthritis of the hips. There are no witnessed flare-ups of pain, fatigue, incoordination, weakness, or lack of endurance with three repetitions of motion on examination. This condition would limit light and heavy physical labor due to its severity and the limitations posed on standing and walking. This condition would not limit or preclude sedentary physical labor. The Veteran does not note any side effects to medication that he takes for this condition, and there are no cognitive limitations imposed by this or any of the Veteran's service-connected conditions. Bilateral pes planus. Osteoarthritic changes are noted on x-ray. This condition could limit light and heavy physical labor, as the Veteran claims to have difficulty standing or walking for long periods of time in terms of his feet. He does not take any medications specifically for this, and his cognitive abilities are not limited by this condition. Sedentary labor would be not be limited or precluded by this condition, as it would have limiting effects on seated activities, similar to his other joint service connected conditions. Hypertension. This condition would not currently preclude any form of labor. It appears to be well controlled on the current medicinal regimen. There is currently no objective evidence for the presence of hemorrhoids or residual of hemorrhoids. The Veteran has deferred an examination. As such, this condition would not limit him in any form of labor. He denies any symptoms or complaints related to current hemorrhoids or residua thereof." Although the Veteran maintains that his service-connected conditions render him unemployable, the preponderance of the evidence is against such a conclusion. There is no medical opinion in the record indicating that the Veteran is unemployable/incapable of gainful employment due to his service-connected disabilities. Medical professionals have consistently concluded that his service-connected hypertension and right ankle is stable, and that the remaining service-connected conditions are not of sufficient severity to substantially impact on employment. The Veteran's limitations from the service-connected conditions are recognized by the combined rating of 70 percent. There is nothing in the record that suggests that the nature or severity of the service-connected disabilities would place him in a position different from other Veterans who have similar service-connected disabilities rated at 70 percent combined. In essence the evidence of record shows that the Veteran is able to engage in sedentary employment. His service connected disabilities primarily involve the lower extremities and are not shown to be of such nature and severity as to prevent him from engaging in sedentary employment. 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 his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that the Veteran argues or suggests that the clinical data supports entitlement to a TDIU or that the certain rating criteria should not be employed, 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). Although the Veteran has not held employment since 2005, the preponderance of the evidence is against a finding that his service-connected conditions have resulted in his unemployability. Therefore, a TDIU is not warranted. The preponderance of the evidence is against this claim; therefore, it must be denied. ORDER A TDIU is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs