Citation Nr: 1241663 Decision Date: 12/06/12 Archive Date: 12/13/12 DOCKET NO. 09-41 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from November 1956 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service-connected for bilateral shoulder arthritis, tinnitus, right ear hearing loss disability, bilateral hand arthritis, bilateral wrist arthritis, hemorrhoids, and herniated disc of the lumbar spine, for a combined evaluation of 70 percent. 2. The preponderance of the competent clinical evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for the award of TDIU benefits have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (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) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 &Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In VA correspondence to the Veteran dated in July 2008, the Veteran was informed of what evidence was required to substantiate the claim for TDIU, of his and VA's respective duties for obtaining evidence, and of the criteria for an effective date in the event entitlement is granted. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does comply with the express requirements of the law as found by the Court in Pelegrini. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), service personnel records, medical records, and a formal finding of unavailability of Social Security Administration (SSA) records, dated in March 2012. Additionally, the claims file contains the statements of the Veteran in support of his claim. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. VA examinations and/or clinical opinions were obtained in June 2012. 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 examinations/opinions are more than adequate, as they are based on physical examinations of the Veteran and interviews with regard to his symptoms. The examiner provided rationale for the opinions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service-connected for herniated disc of the lumbar spine, evaluated as 40 percent disabling, arthritis of the right hand evaluated as 10 percent disabling, arthritis of the left hand, evaluated as 10 percent disabling, arthritis of the left wrist evaluated as 10 percent disabling, arthritis of the right wrist evaluated as 10 percent disabling, arthritis of the left shoulder evaluated as 10 percent disabling, arthritis of the right shoulder evaluated as 10 percent disabling, tinnitus evaluated as 10 percent disabling, hemorrhoids evaluated as noncompensable, and right ear hearing loss evaluated as noncompensable. The Veteran has a combined evaluation of 70 percent disabling from January 2006. The Veteran filed a claim for entitlement to TDIU in January 2008. As noted above, total disability ratings for compensation may be assigned where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a) states that disabilities of both upper extremities will be considered as one disability. The Veteran meets the schedular criteria listed in 38 C.F.R. § 4.16(a) because he has one disability rated at 40 percent or more and a combined evaluation for compensation of 70 percent. The issue is whether the Veteran is unable to follow a substantially gainful occupation as a result of service-connected disabilities, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Despite the contentions of the Veteran, the evidence of record, as noted below, does not support a finding that the Veteran is incapable of substantial gainful employment due to his service-connected disabilities. The Veteran underwent a VA general medical examination in June 2012. (The claims file includes a June 2012 VA examination report with a July 2012 addendum.) The examiner opined that the Veteran's service-connected disabilities do not prevent him from securing and maintaining substantial gainful employment. The examiner opined that the Veteran would be prevented from doing physical work which required heavy lifting and frequent bending, but he would be able to do light physical and sedentary work. She also noted that there is nothing related to his hearing loss or tinnitus which would preclude gainful employment. With regard to the wrists, the right wrist palmar flexion was to 70 degrees with painful motion beginning at 40 degrees. Right wrist dorsiflexion was 60 degrees, with pain at 40 degrees. Left wrist palmar flexion was 50 degrees with pain at 40 degrees. Left wrist dorsiflexion was 50 degrees with pain beginning at 30 degrees. The Veteran was able to perform repetitive use testing without additional limitation in range of motion. The Veteran had normal strength. With regard to the hands, the Veteran had limitation of motion of the fingers; however, the examiner also found that the Veteran had normal strength of hand grip bilaterally. There was no ankylosis of the thumb and or fingers. The examiner found that the Veteran's hand, thumb, or finger conditions do not impact his ability to work. With regard to the Veteran's shoulders, the Veteran's had right shoulder flexion to 140 degrees with objective evidence of pain at 90 degrees. He had right shoulder abduction to 160 degrees with pain beginning at 90 degrees. He had left shoulder flexion to 160 degrees, with pain beginning at 90 degrees. He had left shoulder abduction to 160 degrees with pain beginning at 90 degrees. The Veteran was able to perform repetitive use testing with three repetitions with additional loss of range of motion of approximately 20 degrees in abduction and flexion of the left shoulder. The examiner found that the Veteran's bilateral shoulder condition did not impact his ability to work. With regard to the Veteran's back, the June 2012 VA examination report reflects that he had forward flexion to 50 degrees with pain beginning at 5 degrees. He had extension of 20 degrees with pain beginning at 5 degrees. Lateral flexion was to 20 degrees with pain beginning at 5 degrees, bilaterally. Lateral rotation was to 20 degrees with pain beginning at 5 degrees, bilaterally. The Veteran was unable to do repetitive-use testing with three repetitions. The examiner noted that the Veteran was unstable on his feet and started to fall during the examination. The examiner was unsure as to why the Veteran was unstable but the Veteran stated that "he has numbness in the bottom of his feet and his doctors do not know why." The examiner found that the Veteran had functional loss of the back which included less movement than normal, excess fatigability, and pain on movement. The examiner found that the Veteran had radicular pain which consisted of mild left lower extremity paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. With regard to the Veteran's right ear hearing loss and tinnitus, the Veteran had a right ear speech recognition score of 80 percent, and an average pure tone threshold value of 46.25 decibels. The examiner noted that unemployability is not caused by or a result of hearing loss and tinnitus. The examiner noted that there is nothing related to hearing loss or tinnitus to preclude gainful employment. With regard to the Veteran's hemorrhoids, the June 2012 VA examiner found no findings, signs, or symptoms attributable to the Veteran's service-connected hemorrhoids. It was also noted that the Veteran did not have a treatment plan for continuous medication. In sum, the June 2012 VA clinical opinion, which was based on a thorough examination of the Veteran, reflects that his service-connected disabilities are not so severe as to make it impossible for him to obtain and maintain substantial gainful employment. The Board has also considered the clinical records prior to the most recent VA examination report. An August 2008 VA examination report reflects that the Veteran reported periods of back pain flare-ups in which the pain is incapacitating as a 10/10. He reported that these flare-ups occur every three months and last five days. The Veteran reported that his occupation was as an administrator and that it hurts him to sit for long periods of time. Upon clinical examination, forward flexion was to 70 degrees with pain at the end; however, upon repetitions it was limited to 60 degrees. Extension was to 10 degrees with pain at the end. Lateral flexion was 10 degrees bilaterally with pain at the end. The Veteran reported that he takes etodolac twice a day for with "fair results." The Board notes that etodolac is a nonsteroidal anti-inflammatory drug. An August 2008 VA examination report reflects that the Veteran reported flare-ups of pain in the bilateral shoulders occurring three times a month and lasting 24 hours. The Veteran reported that his bilateral shoulder disability does not affect his work, but does affect his daily activities such as yard work and vacuuming. The record reflects that the Veteran reported that he used etodolac twice a day with "fair results". The August 2008 VA examination report also reflects that the Veteran reported flare-ups of wrist pain which occur one time a week and last for an hour. The examiner noted wrist dorsiflexion on the right was 0 to 45 degrees with pain at the end (normal dorsiflexion is to 70 degrees). Palmar flexion was 0 to 50 degrees with pain at the end of motion (normal palmar flexion is 80 degrees). Radial deviation on the right was 0 to 30 degrees with pain at the end of motion (normal radial deviation is 20 degrees), and ulnar deviation was 0 to 40 degrees with pain at the end of motion (normal ulnar deviation is 45 degrees). Repetition caused increasing pain with no change in the range of motion. With regard to the left wrist, dorsiflexion was 0 to 70 degrees with pain at the end. Wrist palmar flexion was 0 to 40 degrees with pain at the end of motion. Wrist radial deviation was 0 to 30 degrees with pain at the end of motion. Wrist ulnar deviation was 0 to 30 degrees with pain at the end of motion. Repetition caused no change in the range of motion, but there was increasing pain. The Veteran reported that his wrist disability affects his occupation in doing administrative work and working on the computer as the computer made his wrist hurt. He also reported that it is hard for him to mow the grass and use a weed eater. The record reflects that the Veteran reported that he used etodolac twice a day with "fair results". The Veteran provided a statement in April 2009, in which he stated that he has lost grip strength in both hands, which causes him to drop things. (The Board notes that this lack of strength is not corroborated by the June 2012 VA examination report.) The Veteran further reported that he is unable to type or do administrative work which is his occupational field. He noted that his shoulders do not "operate properly" and he has lost range of motion in them. He also noted that his back prevents any prolonged sitting or standing. The claims file includes correspondence dated in October 2009, by a nurse, R.C. She stated that the Veteran has "degenerative disc disease with associated splndylosis [sic] in his spine and knees", and degenerative joint disease of the "hands and feet which affect his ability to carry on normal daily activities and simply walking." She noted that the Veteran "has not been able to tolerate work activities for some time due to pain and the degenerative disease process. I also confirm that he is not employable." The Board notes that the Veteran is not service connected for a bilateral knee disability or a bilateral foot disability; thus, the opinion of R.C. is not probative as to whether his service-connected disabilities alone are sufficient to cause unemployability. An October 2011 VA psychiatry note reflects that the Veteran is severely depressed. The Veteran reported that he is in constant pain in both hands due to arthritis and cannot do much. He also was noted to have guilt feelings about his past, distressing memories, and difficulty falling asleep. The examiner noted that the Veteran is "unable to hold any job due to his multiple service connected conditions." The October 2011 VA examiner diagnosed the Veteran with chronic severe PTSD related to service; however, the Board notes that the Veteran is not service-connected for PTSD. Entitlement to service connection for PTSD was denied by the RO in an April 2007 rating decision. The decision became final. The October 2011 opinion with regard to the Veteran's unemployability was provided by the Director of the PTSD program. The Board finds that the opinion is not as probative as the June 2012 opinion, as the October 2011 examination report does not reflect that the examiner actually performed a physical examination of the Veteran, but instead relied on the Veteran's reports of functioning. In contrast, the June 2012 examiner, who interviewed the Veteran with regard to his symptoms, also completed an extensive physical examination with range of motion testing. The Board acknowledges the Veteran's statement that he has not been employed since 1991 and that his skeletal system disabilities are the cause of his inability to gain employment. He further noted that his former occupation consisted of mainly typing, and that due to his hands and wrists, he can no longer type without extreme pain. 2007 VA clinical records reflect that the Veteran reported that after his discharge from the Air Force, "he worked mainly with computers but he often had to lift heavy boxes of printer paper. He quit working in 1991 when the plant closed. He applied for a job using an adding machine sometime thereafter, but he states he failed the testing required because of pain in his hands and fingers." In correspondence dated in November 1993, the Veteran reported that the plant in which he worked stopped production in October 1991 and since then he had been attending community college. The Veteran had experience as a data entry operator. His 1993 correspondence is negative for any mention that his hands and /or wrists were the cause of his unemployment. (He did note that his age and back disability may have been a reason why he could not obtain employment.) The Veteran attended college for a degree in business administration, with an expected graduation date in 1980. As noted above, he then attended college again in 1992 and 1993. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant entitlement to TDIU. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361 (1993). The preponderance of the evidence does not support the Veteran's contention that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. The VA records reflect that his disabilities do not prevent him from performing light physical or sedentary job activities. The mere fact that the Veteran's disabilities have an effect on employment of some type is not sufficient to find that he is entitled to TDIU. In order to warrant TDIU, the evidence of record must reflect that the Veteran is unable to secure and follow a substantially gainful occupation consistent with his education and occupational experience by reason of service-connected disabilities. The Veteran has significant experience in administrative work, to include as a computer operator. The Board acknowledges that the Veteran has hand and wrist disabilities; however, the evidence does not reflect that his disabilities are so severe as to preclude him from all administrative office work or from other work, to include light physical labor or sedentary work. The fact that the Veteran has not sustained long-term employment in the past two decades is not synonymous with an inability to maintain substantial gainful employment at other occupations. The Board finds that the evidence is against a finding that the Veteran's service-connected disabilities prevent the Veteran from maintaining substantial gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert . v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs