Citation Nr: 1300648 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 06-39 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 decision of the Montgomery, Alabama, Regional Office (RO). The Board previously remanded the appeal in June 2004, September 2006 and November 2010. Following the issuance of the February 2012 Supplemental Statement of the Case (SSOC), the Veteran submitted additional relevant evidence and, in November 2012, his representative waived the initial RO consideration of the evidence; thus, the Board need not remand the matter for initial RO consideration. FINDING OF FACT The most probative evidence indicates no service connected disability or disabilities render the Veteran unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in March 2003, November 2010, and December 2011 letters, which were provided before the adjudication and subsequent readjudication of the Veteran's claim. Moreover, the Board finds any error in the content of a particular notice, or to its timing is rendered harmless, as the Veteran had a meaningful opportunity to participate in the adjudication process, he is represented by a service organization, and at this point, it is reasonable to conclude the Veteran is aware of the criteria to establish entitlement to the benefits sought. Additionally, all relevant facts have been properly developed, and all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records and Social Security Administration (SSA) folder have been obtained, and he has been provided an appropriate VA examinations. Moreover, the Veteran has declined a hearing in connection with his appeal and the Board concludes the AMC/RO complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the Veteran has not identified any additional evidence VA should seek to obtain on his behalf nor is any such evidence reasonably indentified by the record. Therefore, the Board concludes that all reasonable efforts were made to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. In light of the foregoing, VA has made all reasonable efforts to assist the Veteran in substantiating his claims and legally need not undertake any further efforts to further development the appeal. The Veteran presently seeks to establish entitlement to a TDIU rating, maintaining that his service-connected psychiatric disability renders him unemployable. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of (I) a single service-connected disability ratable at 60 percent or more, or as a result of (II) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). Unemployment or difficulty obtaining employment is insufficient, in and of itself, to establish unemployability, as the relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). In reaching such a determination, the central inquiry is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has attained a high school education, has specialized training/work experience most congruent with his prior occupation as a coal miner and has been unemployed since approximately December 1994. See SSA Admin. Decision, Nov. 30. 2001; see also "DIAGNOSTIC IMPRESSION," VA general examination, Aug. 19, 2003. During the period under review, service connection has been in effective for (I) posttraumatic stress disorder (PTSD), rated 70 percent disabling; (I) high frequency hearing loss, rated 10 percent disabling; (II) right ear tinnitus, rated 10 percent disabling; and respective noncompensable ratings assigned for history of (III) tympanic membranes marginal hemorrhage, (IV) a facial shell fragment wound (V) a left hand shell fragment wound, and (VI) a left middle finger fracture. The Veteran meets the schedular criteria for TDIU consideration. 38 C.F.R. § 4.16(a). Thus, the determinative matter, and the focus of the analysis to follow, centers on whether the Veteran is rendered unemployable because of a service-connected disability(ies). A November 2001 SSA administrative decision granted the Veteran's application for SSA disability benefits, citing cervical and lumbar spine manifestations to support the determination. The SSA determination also lists cervical spine, lumbar spine, PTSD and depression as being "severe" for SSA purposes. The Veteran underwent an August 2003 VA PTSD examination, reporting his psychiatric symptomatology and the impact on employment related functioning. At this time, the examiner stated: [The Veteran] is unable to work due to his back injury. The fact that he worked the same job for twenty-eight (28) years prior to his back injury indicates that he would likely still be working if he did not have the back injury. This statement was preceded by the examiner report of current examination findings and the relevant medical evidence. With respect to service-connected and nonservice-connected disabilities, the January 2011 VA examination details the symptomatology, treatment history, current examination finding and current medical diagnoses of each condition, as well as the Veteran's report of corresponding symptomatology and functional impairment. Based on the foregoing, the examiner opined that degenerative disc disease of the cervical spine, fusion, resulted in the Veteran being fully unemployable and stated no service connected disability or disabilities would impact his employability. In January 2012, the Veteran underwent a VA ear examination and the examiner detailed the Veteran's account of symptomatology, current examination findings and corresponding diagnoses. Upon considering the foregoing, the Veteran's account of symptomatology and the relevant evidence of record, the examiner opined that the Veteran his ear related conditions would not impair his employability. Merits The Veteran may be considered to provide a competent and credible account of the symptomatology associated service-connected and nonservice-connected disabilities and employment related impairment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he lacks the necessary training and expertise to provide a competent medical opinion relating his unemployability solely to a service-connected disability or disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to); Jandreau, 492 F.3d at 1376-77 (stating "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). Here, there is no competent lay evidence relating the Veteran's unemployability to any service-connected disability or disabilities. Further, the most probative medical evidence weighs against the claim. Respective January 2011 and January 2012 VA examination opinions provide clear medical opinions relating the Veteran's unemployability to a nonservice-connected condition. Moreover, the respective examiners supported the provided medical proposition with cogent analysis of the relevant medical evidence, current examination findings and the Veteran's account of symptomatology, rendering the opinions highly probative as of the matter at hand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions also are generally consistent with the other medical evidence of record, including the August 2003 VA examination opinion, further increasing the probative value of the January 2011 and January 2012 VA examination opinions. While probative, the November 2001 SSA administrative determination provides minimal, if any, probative evidence in favor of the claim and are not binding upon VA. See Collier v. Derwinski, 1 Vet. App. 413, 417(1991). Service connection is in effect for PTSD and PTSD is listed as one of the many diagnosed conditions that are characterized as severe for SSA purposes, but this is but a list of all the Veteran's aliments and not a statement of the basis for the grant of SSA disability benefits. If fact, a close reading of the November 2001 SSA administrative determination reveals that manifestations associated with the Veteran's cervical and lumbar spine conditions are extensively detailed in describing the basis for the disability determination, not any psychiatric condition; moreover, the record as a whole, medical and lay, does not been reasonably raise a service connection claim for a cervical spine, lumbar spine disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 88 (2009) (VA is not required to anticipate a claim for benefits that has not been identified in the record by medical professionals or by competent lay evidence). Accordingly, the SSA determination provides little, if any, probative evidence in support of the claim. In sum, the preponderance of the evidence, medical and lay, does not demonstrate that the Veteran's service-connected disability or disabilities, individually or in the aggregate, precluded him from securing or following substantially gainful occupation and, TDIU is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Thus, the appeal is denied. ORDER A TDIU is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs