Citation Nr: 1229985 Decision Date: 08/30/12 Archive Date: 09/05/12 DOCKET NO. 11-33 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to April 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran had a hearing before the undersigned in July 2012 and the transcript is of record. The issue on appeal requires clarification. Originally certified to the Board as an earlier effective date claim, the Board finds the issue is properly characterized as entitlement to TDIU, to include prior to September 15, 2009. The Veteran claimed entitlement to an increased rating for his residuals of subtotal gastrectomy and vagotomy, to include malnutrition and pancreatic disease in September 2009. Therein, he further claimed he was completely, and totally unemployable. In a March 2011 rating decision, the Veteran was awarded a 100 percent rating for his service-connected digestive system disease, effective September 15, 2009, the date of his claim. The rating decision also dismissed the TDIU claim as "moot" given the Veteran was already awarded a 100 percent schedular rating. The Veteran filed a notice of disagreement in August 2011 clearly indicating disagreement with the unemployability portion of the opinion only. He took issue with the fact that the issue was just dismissed. He believes he was unemployable prior to September 15, 2009. The Veteran was never awarded TDIU. Thus, the issue cannot be entitlement to an earlier effective date for TDIU. The Veteran was awarded a 100 percent schedular disability rating for his service-connected disability, effective September 15, 2009. Thus, the Veteran seeks a 100 percent rating prior to that date on the basis of individual unemployability. 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. The Veteran's initial claim for TDIU was received in January 1985, and denied ultimately by the Board in an April 1988 Board decision; the Veteran did not appeal this decision and it is, therefore, final. 2. The Veteran again filed a TDIU claim that was received on November 30, 1994; there is no final denial of record. 3. The Veteran again filed a TDIU claim that was received on September 15, 2009. The RO determined the claim to be moot when he was awarded a 100 percent schedular disability rating, effective September 15, 2009, the date of his most recent TDIU claim. 4. Prior to September 15, 2009, the Veteran was not precluded from substantial and gainful employment solely due to his service-connected disability. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify VA has duties to notify and assist claimants 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). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in December 2009. That letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible, and records associated with his grant of Social Security Administration (SSA) disability benefits have been obtained. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The RO provided the Veteran appropriate VA examinations in 1995 and 2009. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). TDIU from September 15, 2009 The Veteran takes issue with the fact that the RO, in its March 2011 rating decision awarded the Veteran a 100 percent schedular rating for his service-connected residuals of subtotal gastrectomy and vagotomy, to include malnutrition and pancreatic disease, and deemed his TDIU claim "moot." Specifically, the Veteran believes the RO should have adjudicated his TDIU claim regardless of the 100 percent schedular grant. TDIU is a claim, which considers whether a veteran's service-connected disabilities are sufficient to produce unemployability notwithstanding that the schedule for rating disabilities provides an evaluation of less than 100 percent. See 38 C.F.R. § 3.341. Where a veteran is already in receipt of a 100 percent schedular disability rating, there is no additional benefit a TDIU award could provide. Id. In AB v. Brown, 6 Vet. App. 35 (1993), the Court held a favorable decision awarding a higher rating does not abrogate a pending appeal if it is less than the maximum available benefit. The Veteran was awarded a 100 percent schedular rating for his service-connected residuals of subtotal gastrectomy and vagotomy, to include malnutrition and pancreatic disease, effective September 15, 2009. This is the maximum benefit available for the Veteran. The RO's dismissal of his TDIU claim as "moot" as of September 15, 2009, therefore, was proper. TDIU prior to September 15, 2009 Prior to September 15, 2009, the Veteran was only service connected at 60 percent for one condition, namely residuals of subtotal gastrectomy and vagotomy. Thus, the issue of entitlement to TDIU prior to September 15, 2009 is not "moot" to the extent the Veteran had a pending claim stemming before this time. The Board concludes he did. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs from the claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Id. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The Veteran filed for TDIU several times prior to his September 2009 claim. Significantly, the Veteran believes his claim stems from a January 1985 statement indicating he had suffered totally disabling injuries in an April 1984 motor vehicle accident (MVA). The Board disagrees. His January 1985 claim was denied by the RO in April 1985 and ultimately denied by the Board in an April 1988 decision. Thus, the denial is final. 38 U.S.C.A. §§ 5108, 7104. Thereafter, the Veteran filed a claim received on November 30, 1994 seeking an increased rating for his service-connected ulcer disability and a 100 percent rating based on individual unemployability. The RO adjudicated the increased rating portion of the claim in an October 1995 rating decision, but not the TDIU claim. In its September 1997 Board decision, the Board denied the Veteran's increased rating claim and referred back the TDIU issue indicating the claim was raised, but not yet adjudicated by the RO and, therefore, not properly before the Board at that time. At the time of the Veteran's new September 2009 claim seeking both an increased rating and TDIU, the RO still had not adjudicated the TDIU claim referred by the Board in September 1997. The RO ultimately did address the issue of entitlement to a TDIU stemming from the November 30, 1994 claim in a December 2011 Statement of the Case (SOC). The Veteran perfected his appeal and the issue is now properly before the Board. The Board finds the Veteran's TDIU claim stems from November 30, 1994. Thus, the pertinent inquiry is whether he is entitled to TDIU from November 30, 1994 to September 15, 2009. The Board concludes he is not. The Veteran contends he has been unemployable since a post-service motor vehicle accident (MVA) in April 1984. The Veteran has received workers compensation benefits and is in receipt of Social Security Administration (SSA) disability benefits stemming from post-service occupational injuries in 1984 and 1990. Specifically, the SSA found the Veteran disabled due to disabilities of the lumbar and cervical spine stemming from his 1984 and 1990 occupational injuries. The Veteran is not service-connected for lumbar or cervical spine disabilities. He is only service-connected for one disability, an ulcer disability. Prior to September 15, 2009, the Veteran was rated 60 percent disabling for his ulcer disability, described as gastrectomy and vagotomy residuals. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to September 15, 2009, the Veteran did meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a). The only remaining question is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disability prior to September 15, 2009. There is no evidence of record indicating he was unemployable solely because of that disability prior to that date and the Board concludes he was not. The Veteran adamantly believes the SSA award, which was granted in 2009, proves his VA benefits case. To the contrary, the SSA decision and accompanying medical evidence cuts against the Veteran's VA claim. Neither the Veteran's age nor his non-service connected disabilities can be taken into account in evaluating his individual unemployability status. 38 C.F.R. § 4.16(a); See, e.g., Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). All the medical evidence used in conjunction with the SSA award demonstrates that the Veteran is unemployable due to non-service connected low back and neck injuries sustained post-service disabilities. The Veteran worked as a plant manager and a model/display maker up until April 7, 1984 when he was involved in a serious post-service MVA, which resulted in low back and neck injuries. Thereafter, the Veteran attempted to work as a metal polisher in 1990, but employment was short lived after another work-related lifting injury caused further low back injuries, to include inguinal hernias. The Veteran thereafter underwent two hernia repair surgeries. While medical examiners have noted the Veteran's service connected ulcer disability and prior stomach surgery, they clearly identify the post-service work related injuries as the reason for the Veteran's SSA disability award. For example, a vocational expert and the Veteran's primary physician, Dr. DeJesus, Jr., both opined, in connection with his SSA disability claim, that the Veteran is totally and permanently disabled due to chronic low back syndrome and osteoarthritis of the lumbar spine since the 1984 MVA. In November 1991, a private orthopedic surgeon, Dr. Lim, noted the Veteran's work injuries in 1984 and 1990, as well as his past history of gastrectomy for bleeding ulcer, with surgery done in 1960. With regard to unemployability, however, Dr. Lim found his diminished functional capability to be attributable to his osteoarthritis of the spine and other residuals from the 1984 and 1990 work-related injuries. Dr. Lim did not apportion any amount of the Veteran's unemployability to his service-connected ulcer disability. The Veteran also incurred inguinal hernias as a result of heavy lifting on the job in October 1990. These hernias were surgically repaired twice. The Veteran was hospitalized multiple times after the 1990 injury, to include in 1993, 1994, and 1995, for both complications of the hernia repairs and bleeding ulcers. From the hospitalization records, it appears the Veteran's continued use of alcohol and tobacco contributed to the resurfacing of ulcers. The Veteran was afforded a VA examination in May 1995 where the examiner noted the hernias developed as a result of the 1990 lifting injury, but also noted the Veteran's recurrence of ulcers in between hernia repairs. At that time, the examiner diagnosed the Veteran with a history of peptic ulcer disease, now recurrent, with continued activity in spite of medication. The Veteran was noted to be thin, but his weight had not changed; he was always a thin man. The examiner also noted a tender abdomen, and his history of recurrent ulcers beginning about four years prior. The May 1995 VA examiner did not render an opinion with regard to the Veteran's employability. Regardless of whether the Veteran's hernias are in any way related to his service-connected ulcer disability, in September 1993, a private physician, Dr. Simon, opined that the Veteran's hernias do not cause or otherwise contribute to his permanent disability status. It is noteworthy that, based on the medical evidence at the time, the Board denied the Veteran's claim for an increased rating for his service-connected subtotal gastrectomy and vagotomy, evaluated as 60 percent disabling, in a September 1997 decision. Within that decision the Board noted the Veteran's hospitalization from 1993 to 1995 for ulcer complications, as well as the Veteran's claimed interference with employment. The Board concluded that interference with employment did not solely rest upon the manifestations of the service-connected disability at issue. Rather, the final Board decision found the Veteran's service-connected disability caused significant symptoms such as nausea, sweating, diarrhea, weight loss with malnutrition, and anemia, but did not render him totally disabled. His symptoms were found to mirror those of the 60 percent criteria under Diagnostic Code 7308. The Veteran concedes he became totally disabled as of April 1984 due to a post-service MVA resulting in low back injuries. Nonetheless, he believes he is entitled to TDIU from VA solely on the basis of receiving SSA disability. At his hearing, the undersigned emphasized that VA TDIU awards are dictated by VA law and regulation, not by the law, regulation, or determinations of other agencies. See 38 C.F.R. § 4.16(a). Regulations governing TDIU require the medical evidence to show the Veteran is totally disabled due to service-connected disabilities alone. Id. Thus, the Veteran's post-service injuries are of no consequence in VA's determination. The Board has thoroughly reviewed the SSA decision and medical evidence relied upon therein. The SSA decision actually cuts against the Veteran's claim as all the medical evidence relied upon in making the award demonstrates that the Veteran's unemployability is solely due to low back and neck injuries from post-service accidents. While these medical records note the Veteran's service-connected ulcer disability, they do not attribute his unemployability to that disability. The Board has considered the internet articles submitted by the Veteran, but found them not persuasive because they are merely generic texts. These generic texts, which do not address the facts of the Veteran's case, do not amount to competent medical evidence of causality and are of no probative value. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and a total disability rating for compensation purposes based on individual unemployability prior to September 15, 2009 is not warranted in this case. ORDER Entitlement to TDIU is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs