Citation Nr: 1222796 Decision Date: 06/29/12 Archive Date: 07/10/12 DOCKET NO. 10-30 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active service from January 1953 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection has been granted for rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement, currently evaluated as 60 percent disabling. 2. The Veteran's service-connected disability alone does not preclude his substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional letter dated in July 2009 complied with VA's duty to notify the Veteran with regard to the issue on appeal. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. Additionally, the letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's post-service medical records. 38 C.F.R. § 3.159(c)(1)-(3). Also, a pertinent VA examination with respect to the issue on appeal was obtained in July 2009, with an addendum opinion added in August 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The July 2009 VA examination and August 2009 addendum opinion obtained in this case are sufficient, as the examiner considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination/opinion concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis The Veteran contends that he is unemployable due to his service-connected rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2011). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2011) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted only for rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement, evaluated as 60 percent disabling. As such, the Veteran does meet the criteria for consideration for entitlement to TDIU on a schedular basis because the rating satisfies the percentage requirements of 38 C.F.R. § 4.16a. Consequently, the Board must now determine whether this service-connected disability precludes the Veteran from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Regarding the Veteran's employment background, in his application for TDIU, he reported that he last worked as a printer in 2000. He indicated that he left his last employment because of his disability. Communication from his last employer received in August 2009 confirmed that he left the job in 2000 but offered no insight as to whether his service-connected heart disorder was a factor in his retirement. Regarding his educational background, in his application for TDIU, he reported having completed two years of high school and having no additional education or training. The Veteran contends that he is unemployable as a result of his service-connected disability. Specifically, he stated in his June 2009 claim for benefits that he initially stopped working as a printer in 2000 following a 1999 valve replacement surgery and that he had since worked as a farmer for a few years but had become largely unable to do farm work due to his heart condition. In July 2009, the Veteran underwent a VA examination to determine the nature and extent of his service-connected rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement. At this examination, the Veteran reported experiencing "some degree of fatigue" recently, particularly during the past fall, at which time he was found to have a very low heart rate. Following the placement of a pacemaker, the Veteran reported that he had been doing better. He also noted that he owned a small farm and raised cows and a few crops. The examiner noted that the Veteran had help from his sons in faming but was still able to do some digging and gardening on the farm. The examiner also noted that the Veteran was the caretaker for his wife, who was ill with cancer. The examiner estimated the Veteran's maximum METs level at 6-7 based on his reported activities and symptoms. The examiner found no evidence of overt congestive heart failure. Pursuant to the Veteran's claim for entitlement to a TDIU, the VA examiner reviewed the claims file and issued an addendum opinion in August 2009. At that time, the examiner reiterated his estimation of the Veteran's maximum METs level of 6-7. Based on the findings of the July 2009 VA examination, as well as records contained in the claims file, the examiner concluded that the Veteran should be limited to primarily sedentary work with "limited light activity." The examiner opined that the Veteran would be able to stand or walk 2 to 3 hours per day and could perform light lifting of up to 20 pounds on occasion. The examiner found the Veteran to be limited only in strenuous work due to his service-connected rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement. VA treatment records dated through May 2010 show treatment for the Veteran's service-connected heart disorder. These treatment records, however, do not contain medical opinions indicating whether the Veteran's service-connected heart disability renders him unemployable. Indeed, in May 2010, his VA treatment provider found him to be "doing well" and "active" by his report, with no symptoms of congestive heart failure or angina. He described only occasional brief sharp left pectoral chest pain that was unrelated to activity. Based on a review of the evidence, the Board finds that entitlement to a TDIU is not warranted. The evidence does not show that the Veteran's only service-connected disability-rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement-alone prevents him from working. The Board acknowledges that the Veteran last worked full-time in 2000, with some farming work after that time. However, the Veteran reported to the July 2009 VA examiner that he was experiencing fatigue upon taking care of his sick wife. He was further noted to have improved fatigue following the placement of a pacemaker, and his May 2010 VA treatment provider noted him to be active and "doing well." In this case, the evidence does not show that the Veteran is unemployable due to his one service-connected disability. The sole medical opinion of record, that of the 2009 VA examiner, shows that the Veteran's only service-connected disability [rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement] does not interfere or prevent him from performing activities consistent with his work experience and his education or training. That opinion is uncontradicted in the record-and is also consistent with the Veteran's reported symptomatology at the July 2009 examination and with his ongoing VA treatment records. In particular, the Board notes that the Veteran himself stated at the July 2009 VA examination that he was able to raise cows and engage in gardening, and, in the August 2009 addendum opinion, the VA examiner specifically found the Veteran to be able to engage in sedentary work. In sum, the Veteran's reported symptoms associated with his service-connected cardiovascular disorder fails to show that he is prevented from finding and maintaining employment. The evidence has failed to show that he is incapable of performing the physical and mental acts required by employment due only to this sole service-connected disability. Additionally, the Veteran reported on his November 2009 notice of disagreement that his problems with employment were, in part, due to his advancing age. As already noted above, an inability to work due to age may not be considered. 38 C.F.R. §§ 4.14, 4.19. The Board acknowledges the Veteran's contention that his age affects the severity of his service-connected heart disorder. However, the Board reiterates that the evidence of record fails to show that the Veteran's rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement renders him unemployable, regardless of the affect his age has on his employability. In this case, the evidence fails to show that the Veteran's service-connected disability of rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement prevents him from securing and maintaining employment. The Veteran has not submitted any evidence to indicate that his service-connected disability alone render him incapable of performing the mental and physical acts required by employment. Evidence of record does not show that, in light of his employment and educational background, the Veteran is precluded from employment solely as the result of his service-connected rheumatic heart disease with severe mitral valve stenosis, status post mitral replacement. Rather, the only competent opinion of record is that of the 2009 VA examiner who opined that the only limitation on the Veteran's ability to work (as a result of his service-connected cardiovascular disorder) is his inability to complete strenuous tasks. This examiner specifically found that the Veteran's service-connected cardiovascular disorder does not preclude sedentary work or limited light activity. Although the Veteran's service-connected disability may cause interference to some extent with his employability, such interference is contemplated in the schedular rating currently assigned to that disorder, and the evidence of record does not demonstrate that his service-connected disability alone results in unemployability. The VA examination and treatment records do not reflect that his service-connected disability results in his inability to work. Accordingly, the Board finds, based on this evidentiary posture, that the preponderance of the evidence is against the Veteran's TDIU claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2011). ORDER Entitlement to a TDIU is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs