Citation Nr: 1237504 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 07-16 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability evaluation for compensation based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1977 to November 1979 and from December 1990 to June 1991. He also had service in the U.S. Army National Guard of Iowa. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO). FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 2. The Veteran failed, without good cause, to appear for a scheduled VA examination in May 2012. CONCLUSION OF LAW The criteria for entitlement to a total disability rating for compensation based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.655, 4.16 ( 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 ( 2012). Upon receipt of a substantially complete application for benefits, VA must notify the Veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the Veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to a readjudication of the Veteran's claim in June 2012, letters dated in December 2009 and March 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a notice defect may be cured by the issuance of a fully compliant notification letter followed by a readjudication of the claim). 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 for entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU), to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA medical treatment records, and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. While VA has a duty to provide VA examinations in certain instances, the Veteran has failed to appear for an examination scheduled by VA to determine the effect of his service-connected disabilities on his ability to maintain substantially gainful employment. In April 2012, a letter was sent to the Veteran's last known address which notified him that he had been scheduled for a VA examination on May 9, 2012. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, the Veteran failed to appear for the May 2012 VA examination. The Veteran has been given ample opportunity to present evidence and argument in support of his claim, and his failure to appear for a scheduled VA examination has prevented VA from adjudicating his claim. "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board finds that VA's duty to assist the Veteran by providing him with a VA examination has been satisfied in this case. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 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. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is in effect for a mood disorder, currently rated as 30 percent disabling; spondylosis of the lumbar spine, currently rated as 20 percent disabling; and a right knee disorder, currently rated as 10 percent disabling. The combined rating for the Veteran's service-connected disabilities is 50 percent. See 38 C.F.R. § 4.25 ( 2012). Therefore, the schedular percentage criteria for TDIU are not met. 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider whether the evidence of record warrants referral to the Director of Compensation and Pension Service for entitlement to a total rating for compensation purposes based upon individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b), where a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In an April 2007 statement, the Veteran indicated that he lost his job that month, in part, due to his service-connected mood disorder. In an April 2008 VA treatment record, the Veteran stated that he was not able to work due to back pain. Another April 2008 VA treatment record reflects that the Veteran was working driving a farm service truck and changing tractor tires. An August 2008 VA mental disorders examination reflects that the Veteran reported that he was no longer working. He stated that he quit his job two to three months before following a disagreement with a co-worker and that his employer would not allow him to return to work. He indicated that he was looking for work, but that his VA disability status was an impediment to finding employment. The Veteran stated that, after his loss of employment, he was referred to work on a farm in Arkansas, where he worked for approximately three weeks refurbishing farm equipment and using this to plant soy beans. The VA examiner noted that the Veteran was functioning adequately in an unpaid role at a family restaurant. In addition, in a September 2009 informal hearing presentation, the Veteran's representative reported that the Veteran was "forced to discontinue employment as a result of his ongoing mental problems." In a June 2010 VA treatment record, the Veteran reported that he ran his own shop. In another June 2010 VA treatment record, the Veteran stated that he owned his own business and worked more than 60 hours a week. He noted "I have a lot of comments about how much I'm working." In November 2010, the Veteran stated that he was "too busy with my business to sleep." A March 2011 VA treatment record reflects that the Veteran reported that he ran his own mechanic shop. Another March 2011 VA treatment record notes that the Veteran was self-employed doing auto repair. In July 2011, the Veteran indicated that his business was very busy, and that he hired two helpers. In August 2011, the Veteran stated that he was working excessive hours. In January 2012, the Veteran reported that he was no longer operating his own business. He explained that he would be better if he could find a job, and that he "used to own my own business and another business came in and ran me out, so now I'm beating the pavement looking for something." An April 2012 VA treatment record notes that the Veteran " got a job about 6 weeks ago" and that he was working more than 40 hours per week. In May 2012, the Veteran reported that he was working at Jorgenson trucking. In this case, the evidence of record shows that the Veteran is presently employed; thus, the evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. Moreover, none of the other medical evidence of record suggests that the Veteran is unemployable due to his service-connected disabilities. 38 C.F.R. § 4.16(b). A total rating for compensation purposes based upon individual unemployability is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). 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, 4 Vet. App. at 363. While the Veteran's service-connected disabilities may have a negative effect on employability, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following any type of substantially gainful occupation. The Veteran does not meet the percentage criteria under 38 C.F.R. § 4.16(a) and the evidence does not otherwise demonstrate an inability to secure or follow a substantially gainful occupation due to his service-connected disabilities. Thus, the Board finds that the RO's decision not to refer this issue to the Director of Compensation and Pension Service for extraschedular consideration of a total rating for compensation purposes based upon individual unemployability was correct. Moreover, the Veteran failed to report for a scheduled VA examination that was necessary to resolve the TDIU claim. The Veteran did not notify VA that he would not be attending this examination, nor did he show good cause for failing to attend. When a claimant fails without good cause to report for a VA examination requested by VA in conjunction with a claim for an increase, the claim "shall be denied." See 38 C.F.R. § 3.655. For the forgoing reasons, a total rating for compensation purposes based upon individual unemployability is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for TDIU, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs