Citation Nr: 1127858 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 06-20 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating for compensation purposes based upon individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to September 1971 and from April 1974 to October 1991. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). FINDINGS OF FACT 1. The Veteran has two years of college education, with work experience as a truck driver, call center representative, cook, and maintenance worker at a nursing home. Service connection is currently in effect for duodenal ulcer status post laparotomy with recurrent ulcers, rated as 30 percent disabling; residuals of left knee injury with arthritis and limitation of motion, rated as 20 percent disabling; and residuals of fracture of the right ankle with degenerative joint disease, rated as 20 percent disabling. The combined rating is 60 percent disabling. 2. The Veteran is not precluded from securing or following substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW A total disability rating for compensation purposes based on individual unemployability is not warranted. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's August 2004 and August 2005 letters advised the Veteran of what evidence was required to substantiate his claim for TDIU. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish an effective date for the claim on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim. Any questions as to the appropriate effective date to be assigned are moot. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has also provided the Veteran with multiple VA examinations to ascertain the current severity of his service-connected disabilities. Additionally, a medical opinion sufficient for adjudication purposes was obtained in connection with the TDIU claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Board realizes that the last VA examinations were conducted in June 2007, the Veteran does not assert that the severity of his gastrointestinal or orthopedic disabilities have increased since that time. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995). The Veteran has neither advanced an argument that the June 2007 examinations were deficient in any respect, nor that he was prejudiced thereby. Barr, 21 Vet. App. at 312 As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran contends that his service-connected disabilities render him unemployable, thus warranting a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected 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. Id. In this case, service connection is in effect for duodenal ulcer status post laparotomy with recurrent ulcers, rated as 30 percent disabling; residuals of left knee injury with arthritis and limitation of motion, rated as 20 percent disabling; and residuals of fracture of the right ankle with degenerative joint disease, rated as 20 percent disabling. The combined service-connected evaluation is 60 percent. Accordingly, the criteria of 38 C.F.R. § 4.16(a) are not met, and a TDIU on a schedular basis cannot be established. Furthermore, the RO referred the Veteran's case to the Director of Compensation and Pension Service for a consideration of the Veteran's case as to whether TDIU can be established on an extraschedular basis. However, for the veteran to prevail on his claim for TDIU, the record must reflect that he is precluded from engaging in substantially gainful employment consistent with his education and occupational experience. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has reported that he had been employed from October 1997 to June 2004 in several jobs as a truck driver, call center representative, housekeeper, and cook. In a September 2004 written statement, the Veteran related that he had to quit the jobs because of pain and swelling in the legs due to his arthritis. He also stated that he was laid off from his call representative and housekeeper work at the nursing home jobs because he would fall asleep at work. He stated that he was always tired and sleepy at work because the pain from arthritis kept him from sleeping at night. The record reflects that the Veteran has 2 years of college education and attended special job training for truck driving. In VA Forms 21-8940, Application for Increased Compensation Based on Unemployability, received in July 2004, July 2005 and August 2005, the Veteran reported that his last employment was at Kentucky Fried Chicken (KFC) as a cook. The Veteran reported he had completed two years of college. He reported that he had become too disabled to work in June 2004 and he left his last job because of disability. In an August 2004 VA joints examination report, the Veteran gave a history of a left knee injury in service and right ankle fracture surgery. He stated that over the past twenty years he had persistent problems with the left knee, to include aching pain, soreness, stiffness, and swelling, along with limited motion. He wore a brace on the left knee and occasionally used a cane to get around. The Veteran reported that he was currently unemployed and not working but that he could do normal daily activities. Regarding the right ankle, the Veteran reported persistent pain but he did not wear a brace on the ankle. It was noted that repetitive use caused increase in aching, pain, soreness, and tenderness in both knee and ankle but no change in the motion was recorded. On physical examination, pain was shown throughout the range of motion and the Veteran's right ankle could dorsiflex 0 degrees and plantarflex 30 degrees. The ankle was found unstable. The left knee showed passive range of motion from 0 to 90 degrees limited by pain, with pain throughout the range of motion. The examiner noted that there was guarding but no ankylosis and that the knee was stable to medial/lateral and anterior/posterior testing with negative McMurray's test. X-ray of the left knee and right ankle revealed minimal degenerative arthritis changes of the left knee joint and minimal to moderate degenerative arthritis changes of the right ankle joint, respectively. The final diagnoses were residual injury of the left knee with arthritis and residual postoperative fracture of the right ankle with arthritis. The Veteran underwent another VA examination in August 2004 for evaluation of his service-connected gastrointestinal disability. The Veteran reported occasional vomiting, approximately one to two times a month; occasional bloating; and two to three episodes of diarrhea monthly; but otherwise he had normal bowel movements. He experienced occasional distention after eating with no vomiting. He denied side effects of medication. After conducting a physical examination of the Veteran and reviewing the upper gastrointestinal study, the examiner rendered a diagnosis of duodenal ulcer. The examiner stated that the Veteran's ulcer disease did not affect the Veteran with regard to employability. The Veteran was currently on medications and seemed to be almost totally in control. The examiner stated that while the Veteran experienced symptoms in the evening with occasional reflux, the duodenal ulcer was no longer present. A March 2004 VA orthopedic clinic report reflects that the Veteran was seen with a chief complaint of left knee pain and right ankle pain. The Veteran wore a Neoprene type sleeve for his ankle and ambulated with a cane. It was noted that he did fairly well other than when he had to stand for long periods. Regarding the left knee, the Veteran reported occasional giving way, but denied catching or locking. The assessments were posttraumatic right ankle and left knee arthritis. It was noted that the Veteran was currently taking Tylenol, which provided some relief. Good range of motion was shown at the time of the treatment. A steroid injection into the joint was discussed but the Veteran did not feel that he was having enough pain to warrant a needle injection. In a December 2005 VA mental health report, the Veteran reported that he completed 15 years of education with 3 years of college. He did not have a valid driver's license and did not have an automobile available for use. He stated that his longest full time job was 7 years as a brick layer assistant, then 3 years in government finance and some time in maintenance for a nursing home. He reported that he was laid off from the last two jobs when the government privatized and when the nursing home was bought out and the company brought in their own maintenance personnel. The Veteran felt that he could not work at that time. In a November 2006 VA treatment record, the Veteran reported some increase in arthritis symptoms over the past few months. At his November 2006 hearing before the RO, the Veteran testified that his knee and ankle caused problems after 15 minutes of standing. He stated that he could walk approximately three blocks with the use of a cane. He reported discomfort with prolonged sitting. He stated that he last worked at KFC as a cook in June 2004, at which time he could finish his shifts but experienced pain in the legs and knee while walking back home. He also reported fatigue associated with standing all day and experiencing acid reflux. In June 2007, the Veteran was afforded another VA joints examination to determine the current severity of his service-connected left knee and right ankle disabilities. The VA examiner indicated that the Veteran's claims file was reviewed. The Veteran wore a brace on the left knee and used a cane to ambulate. He reported that he was fired from his job. The examiner stated that the Veteran would have difficulty doing any job requiring prolonged standing, climbing, crawling, or squatting type activities but that he was capable of a sit-down job. The examiner also found that the Veteran could do normal daily activities. The Veteran could flex his left knee from 0 to 65 degrees. His right ankle could dorsiflex 0 degrees and plantarflex 30 degrees. There was pain throughout the range of motion of the left knee and at the extreme motion of the right ankle. Repetitive use caused increasing symptomgtology. The left knee was stable to medial and lateral testing but some looseness was shown to anterior and posterior testing. The final diagnoses were residual injury of the left knee with arthritis and residual postoperative fracture of the right ankle with arthritis. The Veteran was also afforded a VA gastrointestinal examination in the same month. The VA examiner indicated that the Veteran's claims file was reviewed. The Veteran reported still having nausea and vomiting approximately three times a week and taking medication without side effects. He denied hematemesis, melena, diarrhea, constipation, or any period of incapacitation due to stomach or duodenal disease. The Veteran described dull or occasionally aching sensation, which occurred to the upper quadrants of his abdomen, bilaterally, mostly depending on what he ate. The examiner stated that the condition did not have any impact on the Veteran's occupational functioning or daily living activities. Following a physical examination of the Veteran and conducting diagnostic and clinical tests, the diagnosis was remote duodenal ulcer disease. The examiner stated that the Veteran's gastrointestinal condition did not prohibit him from sedentary or physical employment. An October 2007 disability determination report from the Social Security Administration (SSA) found that the Veteran was disabled due to a primary diagnosis of osteoarthrosis and allied disorder and a secondary diagnosis of diabetes mellitus. On a physical residual functional assessment, the Veteran could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk less than 2 hours in an 8 hour workday, and push and/or pull without limitation. The Veteran must periodically alternate sitting and standing to relieve pain and discomfort, more frequently than can be accommodated by normal breaks. He could occasionally climb and balance, but could not stoop, kneel, crouch, or crawl. It was found that the medical evidence established a medically determinable impairment of degenerative joint disease of the ankles and knees and poorly controlled diabetes mellitus. It was noted that the Veteran also had substance abuse disorder in addition to his other medically determinable impairment; however the other impairment produced disabling limitations such that if he discontinued the substance abuse, residual limitations from his other impairment would remain at a disabling level. The Veteran's claim was referred to the Director of Compensation and Pension Service for an extraschedular evaluation to determine whether the Veteran was rendered unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. See VAOGCPREC 6-96. A June 2010 administrative review report concludes that entitlement to an extraschedular total disability evaluation based on TDIU is not warranted and offered the following rationale: The evidentiary record does not show that the [V]eteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The [V]eteran's service-connected left knee and right ankle conditions may affect any type of employment that involves prolonged standing or walking but does not appear to affect sedentary type of employment. In this case, the Board finds that the Veteran's service-connected disabilities have not been shown to preclude employment consistent with his education and occupational experience. The Board notes that the Veteran was awarded SSA disability benefits in October 2007. The SSA determined that the Veteran's disability began in July 2004 due to a primary diagnosis of osteoarthrosis and allied disorders, and a secondary diagnosis of diabetes mellitus. However, the Veteran's SSA entitlement is based on the combined effects of his service- connected osteoarthrosis and nonservice-connected diabetes mellitus; diabetes mellitus may not be considered in determining whether the Veteran's unemployability is solely due to service-connected disabilities under 38 C.F.R. § 4.16. The criteria for obtaining disability benefits through the SSA are different than those for establishing entitlement to total disability compensation benefits through VA, with an entitlement program governed by different laws and regulations. While SSA determinations regarding unemployability and disability may be relevant in VA disability determinations, they are not binding on VA. Roberts v. Derwinski, 2 Vet. App. 387 (1992) (fact that SSA has ruled that a veteran is disabled, under SSA law, does not establish that veteran is permanently and totally disabled for purposes according to VA laws and regulations). While the determination of the SSA is evidence in support of the Veteran's claim, SSA administrative decisions, including its factual conclusions, are not necessarily binding on VA or the Board. Collier v. Derwinski, 1 Vet. App. 413 (1991). Therefore, the Board does not find that the SSA determination is controlling in this matter. The evidence of record directly addressing the issue on appeal consists of April 2004 and June 2007 VA examinations. With regard to the Veteran's gastrointestinal disability, both the August 2004 and June 2007 VA examiners reach the same conclusion that the Veteran's ulcer disease does not affect the Veteran with regard to employability. Specifically, the June 2007 VA examiner stated that the condition did not have any impact on his occupational functioning or daily living activities and did not prohibit him from sedentary or physical employment. Furthermore, the June 2007 examiner opined that the Veteran would have difficulty doing any job requiring prolonged standing, climbing, crawling, or squatting type activities due to his left knee and right ankle disabilities but that he was capable of a sit-down job. It was also noted that the Veteran could do normal daily activities. Notably, the VA examiner reviewed the claims file and the Veteran's own assertions and also performed a thorough clinical evaluation, including diagnostic testing results. This shows, overall, that the VA examiner was aware of the pertinent history and factual background of the Veteran's case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds, in summary, that the April 2004 and June 2007 VA examiners' opinions are highly probative, as they are clear and well-supported. In fact, it is the most probative evidence of record and is uncontroverted by the remaining evidence. See id. The VA examiner, in summary, determined that although the Veteran's left knee and right ankle disabilities impacted his employment activities to some extent, the Veteran could still work sedentary employment. In light of this record, the Board finds that the service-connected left knee, right ankle, and gastrointestinal disabilities do not present such an unusual or exceptional disability picture, when considered in combination, indicating that they alone render the Veteran unable to gain or maintain substantially gainful employment as would be permitted by his educational and occupational background. The Board considered the Veteran's lay statements that the pain from arthritis of his left knee and right ankle kept him from sleeping at night and he was laid off from his job because he was found fallen asleep at work. However, the Veteran's statements are somewhat inconsistent. He has, on the December 2005 VA mental health report, identified the cause of his lay-off as privatization of the government or restructuring of the company. These inconsistencies tend to show self-interest. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant). Thus, his statements attributing his lay-off from previous jobs are deemed less credible. Accordingly, these assertions have limited probative value on this question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is mindful that the Veteran has been unemployed throughout the course of this appeal. The record reflects that the Veteran left from his last full-time job as a cook at KFC in June 2004. However, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The Board finds that any probative value of the Veteran's own opinion regarding his ability to work is outweighed by that of the opinions provided by the VA medical professionals, who examined the Veteran and reviewed the claims folders, and found that the Veteran's service-connected disabilities do not render him unemployable. In sum, the Board finds that the Veteran's service-connected left knee, right ankle, and gastrointestinal disabilities do not preclude substantially gainful employment. Therefore, a grant of TDIU is not warranted on a schedular or extraschedular basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, TDIU is not warranted. ORDER A total disability rating for compensation purposes based on individual unemployability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs