Citation Nr: 1237235 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-04 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to August 1990. This matter is on appeal from a July 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge in September 2009. A transcript of the hearing is of record. This case was remanded by the Board in November 2009 and November 2010 for further development and is now ready for disposition. FINDING OF FACT 1. The Veteran is currently service-connected disabilities of the lower extremities, when calculated as a single disability, are rated as 40 percent disabling, and the residuals of his fractured mandible is rated as 10 percent disabling; and, these awards, in combination, represent a 50 percent disability rating. 2. The Veteran's service-connected disabilities alone were not of such severity to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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, 3.326(a) (2011). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Specifically, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2009. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This letter also provided notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. While this letter was not sent to the Veteran prior to the initial rating decision, the issue was subsequently adjudicated by the RO in April 2012. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Therefore, adequate notice was provided to the Veteran and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. A private psychiatric treatment note is of record as well. The Board recognizes the argument by the Veteran's representative that not all records have been acquired. Specifically, in his September 2012 brief, the representative questions as to the existence of vocational rehabilitation folder and asked that the Board make efforts to obtain it, if it existed. The representative also argues that the Board should acquire a description from his former employer a description of his duties. The Board disagrees that any additional development is necessary. Indeed, the representative does not appear to know whether such records exist, but merely argues that the Board must, on its own, search for records that may or may not exist. This argument is inconsistent with the intent of the duty to assist. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim). Moreover, the Veteran has not indicated that there is any private treatment that has not been acquired, nor is he receiving disability benefits from the Social Security Administration. There is also no indication that he has ever applied for vocational rehabilitation. As for a position description from a previous employer, the Board finds that such is not needed. The Veteran has more than adequately described his duties and responsibilities of his last job. Next, a VA examination in November 2011 and an addendum opinion in January 2012 with respect to the issue on appeal have been obtained. 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 Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record, to include the statements of the appellant, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). A discussion of the Veteran's hearing before the Board in February 2009 is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. They were met here, as the relevant facts regarding entitlement to TDIU were specifically discussed during this hearing. The Veteran was able to provide testimony on the nature of his physical limitations and how it affects his occupational functioning. Finally, it is noted that this appeal was remanded by the Board in November 2009 and November 2010 for further development. Specifically, the Board instructed the RO to afford the Veteran a VA examination for an opinion as to whether his service-connected disabilities render him unemployable. The Remand in November 2010 substantially reiterated this instruction. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided a VA examination in January 2011, and an addendum opinion was provided by the same examiner in January 2012. The Veteran has not submitted any additional information, nor has he indicated that he wished to add additional testimony. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in April 2012. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to 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 such disability, it must be rated at 60 percent or more; 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. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), but is determined to be unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the rating boards should refer the claims file to the Director of Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose, 5 Vet. App. at 375. In this case, the Veteran is service-connected for bilateral pes planus (30 percent disabling), patellofemoral syndrome of the left knee (10 percent), arthritis of the right knee (10 percent) and residuals of a fractured mandible (10 percent). His overall rating is 50 percent. It should be noted that, for TDIU purposes, disabilities to the lower extremities will be considered as a single disability, to include the bilateral factor, for purposes of this requirement. 38 C.F.R. § 4.16(a). As such, it is appropriate to combine the Veteran's disability ratings for his knees and pes planus, and evaluate them as a single 40 percent disability. However, even though the Veteran has a "single disability" rated as 40 percent disabling, the percentage criteria established under 38 C.F.R. § 4.16(a) have not been met, as his total disability rating is not 70 percent or greater. See 38 C.F.R. § 4.25. The Veteran thereby fails to meet the applicable percentage standards. The Board will now consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, in order to determine whether extraschedular consideration is warranted. However, the Board concludes that the evidence does not show that his service-connected disabilities preclude more than marginal employment. According to the Veteran's statements, his occupational specialty is in the information technology field. Although he stated at hearing before the Board that he had not been employed only since September 2009, other clinical records in the claims file indicate that he has been unemployed since 2004. At this hearing before the Board in September 2009, he explained that his job required him to kneel and crawl under desks to connect computer wiring, but that he was unable to complete these tasks now, mostly because of his knee pain. See Hearing Transcript (T.) at 7, 12. He also stated that his depression, which is not service-connected, has also negatively impacted his employability (T. at 16). The clinical evidence of record reflects that the Veteran experiences limited mobility. At VA examinations in November 2006 and December 2009, he stated that he was unable to stand on his feet for more than a few minutes at a time. Moreover, at a VA Examination in January 2011, the Veteran stated that he was unable to crawl or kneel due to his disabilities, which was required in his occupation. The examiner also determined that the Veteran would be limited to occupations requiring prolonged standing, prolonged walking, kneeling, climbing or squatting. However, after reviewing the claims file, the same VA examiner provided an opinion in January 2012 that the Veteran was capable of performing work, so long as it did not require moderate physical activity such as lifting over 50 pounds, extended walking, or repetitive knee bending. The examiner also stated that the Veteran was capable of performing sedentary work, but must get up at least every two hours. In the Board's view, the Veteran's occupational specialty in the information technology industry does not include the moderately strenuous activity contemplated by the VA examiner in her January 2012 opinion such as lifting over 50 pounds, extended walking or knee bending. Even though the Veteran has stated that he regularly must crawl under desks, which would potentially place stress on the knees, the Board is not persuaded that would occur at the frequency contemplated by the VA examiner in her opinion. Moreover, it is reasonable to presume that one with the Veteran's occupational training would be able to obtain employment in a sedentary environment. There is also some evidence in the record which suggests that the Veteran is unemployable substantially due his to his nonservice-connected psychiatric disorder. Specifically, a November 2004 state disability determination noted that the Veteran had been "dysfunctional or marginally functional" throughout his whole adolescent and adult life resulting from psychiatric symptoms. This determination also noted that the Veteran's physical limitations may be exacerbated by his psychiatric symptoms. It is also important to the Board that the Veteran did not mention his physical limitations having any impact on his employability at that time. Attention is also given to a January 2006 psychiatric report that assigned the Veteran a global assessment of functioning (GAF) between 50 and 58, which is indicative of moderate to severe functional impairment. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). The Board has also considered the Veteran's assertions that his service-connected disabilities render him unemployable. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to state whether his disabilities preclude him from working. On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Attention is given to the Veteran's statement in November 2004, wherein he attributed his inability to get out of bed and go to work to his problems with depression and medications he uses to treat his depression. The Board also notes that the Veteran testified that his depression had a more recent onset but earlier treatment records and examination reports discuss him having problems with depression since adolescences. These inconsistencies force the Board to question the credibility of the Veteran's more recent assertion of being unable to work due to his physical disabilities. See Pond v. West, 12 Vet. App. 341 (1999) (in weighing credibility, factors for consideration include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor). Therefore, as the evidence also does not establish that the Veteran is unemployable due to her service connected disability, the appeal is denied. ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs