Citation Nr: 1300880 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-10 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from April 1985 to July 1987. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), located in Columbia, South Carolina. In April 2009, the appellant testified before the undersigned Veterans Law Judge (VLJ), via a videoconference hearing. A transcript of that hearing was prepared and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012) and that the Board can adjudicate the claim based on the current record. In July 2011, the Board issued a Remand with respect to the claim. The Remand was sent to the RO via the Appeals Management Center (AMC), in Washington, DC. In that action, the Board requested that the appellant undergo additional medical testing and that opinions be obtained concerning his employability. The record reflects that orthopedic and psychiatric examinations were scheduled for the appellant and he was notified of those examinations. The record further indicates that the appellant presented himself to the local VA Medical Center (VMAC) for the orthopedic examination but he failed to appear for the psychiatric examination. With respect to the orthopedic examination, the examiner reviewed the appellant's claims folder, examined the appellant, and then provided an opinion concerning the effect of the appellant's knee disability on his ability to work. That examination report is of record. With respect to the scheduled psychiatric examination, the record shows that the appellant was informed of the examination but he failed to report for said appointment. The examination was scheduled for April 25, 2012. The appellant did not notify the RO, the AMC, or the VAMC that he would be unable to attend. Moreover, since that time, the appellant has not contacted the VA to provide an explanation as to why he was unable to attend the April 2012 examination and he has not requested that another examination be scheduled. Upon reviewing the development that has occurred since July 2011, the Board finds there has been substantial compliance with its remand instructions. In this regard, the Court has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the AMC has attempted to accomplish all of the taskings given to it by the Board. The results of the appellant's orthopedic examination are of record and the claims folder contains the information that shows that the appellant failed to report for the other examination that was scheduled. Under such circumstances, where the appellant failed without good cause to report for the VA examination, the claim must be rated based on the evidence of record. See 38 C.F.R. § 3.655(b) (2012). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its July 2011 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). FINDINGS OF FACT 1. The appellant is service-connected for a mood disorder, the residuals of surgical treatment of osteochondritis desiccans of the left knee, a scar of the left knee, and limited flexion of the left knee. The appellant's combined rating is 60 percent. 2. The evidence of record indicates that the appellant is currently enrolled in college courses that will be used in pursuit of a career. 3. The appellant's service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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. 2012); 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). A review of the claims folder indicates that, as a result of the Board's remand instructions in its Decision/Remand of June 2010, the AMC sent to the appellant in August 2010 a TDIU-specific VCAA letter. A review of that letter indicates that it fully satisfied the duty to notify provisions. The letter informed him of the evidence that was required to substantiate the claim for a TDIU and of his, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. The VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that he should inform the VA of any additional records or evidence necessary for his claim for a total disability rating. The VA fulfilled its duty to assist. In this instance, the VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated, and those other records that the VA was made aware thereof. Given the foregoing, the Board finds that the VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. §5103A(d) (West 2002 & Supp. 2012). In this instance, the appellant underwent a VA Orthopedic Examination in September 2011 in order to determine whether his service-connected orthopedic disabilities prevented him from obtaining and maintaining gainful employment. The result of that examination has been included in the claims folder for review. This report involved a review of the claims folder by the requisite examiner and the results of actual testing of the appellant. Therefore, the Board finds that this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellant was given notice that the VA would help him obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant has proffered documents and statements in support of his claim. It seems clear that the VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. In this case, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Here, the appellant is not prejudiced by the Board's consideration of his claim as VA has already met all notice and duty to assist obligations to the appellant under the VCAA. In essence, the appellant in this case has been notified as to the laws and regulations governing TDIU claims. He has been advised of the evidence considered in connection with his appeal and what information VA and the appellant would provide. He has been told what the VA would do to assist him with his claim and the VA has obtained all documents it has notice thereof that would assist in the adjudication of the appellant's claim. Thus, the Board finds that there has been no prejudice to the appellant that would warrant further notification or development. As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, at 393 (1993). II. Laws, Regulations, and Discussion The appellant has requested a total disability evaluation based on individual unemployability due to his service-connected disabilities. The appellant is service-connected for the following disorders: Disability Rating Effective Date Combined Rating Osteochondritis desiccans left knee 10 percent February 28, 2006 10 percent Scar left knee 10 percent July 28, 2006 20 percent Mood disorder 50 percent March 25, 2008 60 percent Limited flexion left knee 0 percent August 13, 2008 60 percent It has been insinuated that the appellant is unable to maintain substantially gainful employment mainly as a result of the symptoms and manifestations produced by his service-connected disabilities. He has stated that he worked for many years for the South Carolina Department of Corrections but due to his left knee, he was unable to do the amount of walking and standing that was required of the job. It has been implied that the orthopedic restrictions along with his impinged mental health interfere with ability to obtain and maintain gainful employment. A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service member's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19 (2012). Factors to be considered are the appellant's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 32, 332 (1991). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2) (2012), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a) (2012), provide for a TDIU when, due to service-connected disability(ies), a service member is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined disability rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the appellant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). A TDIU presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a service member's employability, the Board cannot overlook the level of education he completed, his professional training and employment history. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Employment is that "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). Generally, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Pursuant to 38 C.F.R. § 4.16(b) (2012), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a) (2012), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). In the present case, the appellant does not meet the threshold for schedular consideration because he does not have a combined disability rating of 70 percent. The record reflects that the appellant has completed four years of high school and is currently studying at college in pursuit of a bachelor's degree. He previously worked as an employee of the Department of Corrections Training Academy (South Carolina) and retired from that position in April 2007. Although the appellant has been asked to describe the type of occupational training and experience he now has, the appellant has not been forthcoming with that information. The appellant has asserted that the reason why he is now unemployed is because of all of his disabilities. In conjunction with his claim for benefits for a psychiatric disorder, the appellant underwent a VA psychiatric examination in November 2008. During the examination, the appellant stated that he was attending college but had some difficulty in classes due to his "depression" and "lack of energy". When examined, the examiner noted that there was no impairment of thought processes or communication. It was further reported that there was some sleep disturbances but that he was able to have social contact with others. He did not have any obsessive or ritualistic behavior, and his thought processes were logical, coherent, and goal oriented without looseness of associations, circumstantialities, tangentiality, pressured speech, or flight of ideas. The examiner reported that the appellant might have occupational "problems". However, the examiner did not conclude that the appellant was unemployable. An orthopedic examination of the appellant was accomplished in September 2011. Prior to the exam, the examiner was asked to express an opinion concerning the employment effects of the appellant's left leg disorder. Upon completion of the physical examination of the appellant, the examiner noted the following: . . . the Veteran's left knee condition does render him unable to secure and maintain a substantially gainful physical type of employment. He left his job as a corrections officer in 2006 because of this left knee problem, not being able to do his job sufficiently. It is also my opinion, however, that the Veteran's present knee condition is not a problem for him to secure and maintain a substantially gainful sedentary type of employment. The Board would note that neither the examiner who provided the psychiatric exam nor the examiner who performed the orthopedic examination specifically stated that the appellant could not engage in full gainful employment. The examiners did not limit the types of sedentary jobs that the appellant could undertake. The examiners did not conclude that the appellant was unable to obtain and maintain some type of sedentary employment commensurate with his training and experience. Also as reported above, the appellant's medical treatment records have been obtained and included in the claims folder for review. None of these records contain a recommendation from a health care provider that the appellant not seek employment. None of the records endorse the appellant's contentions that he is unable to work. None of the records insinuate that the appellant is unable to perform a full range of sedentary work activity. It is noted that there are no private or governmental medical opinions contained in the medical records that would support the appellant's assertions that he is unable to work as a result of his service-connected disabilities. There are only the statements provided by the appellant himself. The appellant's physical and psychological problems, symptoms, and manifestations, which are referenced in the VA records, undoubtedly compromise the range of jobs available to him at some exertional levels. Yet, it is relevant to note that none of the various VA medical care providers have opined that the appellant's service-connected disabilities would preclude employability. In fact, the most recent medical examination, without reservation, found that the appellant was employable. Moreover, the medical treatment records along with the recent VA examination report indicates that the service-connected disabilities are stable and well-controlled, and do not appear to require additional or extraordinary care that would prevent the appellant from working at a desk. With regard to these pieces of medical evidence, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). Here, although the appellant contends that his service-connected disabilities render him to be unable to be employed, the Board finds substantial probative weight against the claim in the recent VA examinations versus the statements made by the appellant. The Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for an appellant to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm. See also 38 C.F.R. §§ 4.1, 4.15 (2012). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating that is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). Marginal employment is not to be considered substantially gainful employment. Factors to be considered, however, will include the service member's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16 (2012). In determining whether a TDIU is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When evaluating the appellant's service-connected disabilities in toto and their effect on his ability to obtain and maintain gainful employment, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service connected condition, 38 C.F.R. § 3.102 (2012) [which requires that reasonable doubt be resolved in the appellant's favor] dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). The determinative medical evidence as discussed herein supports the proposition that the appellant is not unemployable solely due to his service-connected disabilities. Viewed objectively, it preponderates against the claim. In this case the relevant criterion of 38 C.F.R. 4.16 (2012) provides that a TDIU claimant be unable to secure and follow a substantially gainful occupation on account of service-connected disabilities. However, the weight of the evidence shows the unemployability, if present, is more likely the result of the appellant's studies because the medical evidence does show that the appellant could perform sedentary duties, if he so desired. See, for example, Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991). The AMC has not submitted the appellant's case to the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. In this case, the evidence does not require such submission. A clear preponderance of the evidence is against a finding that the appellant is unable to follow a substantially gainful occupation by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2012). Because the evidence does not show that service-connected disabilities render him unemployable, there is no basis to support an extraschedular TDIU rating. The benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for a TDIU. See Gilbert, supra. The appellant's claim is denied. ORDER Entitlement to a total disability evaluation based on individual unemployability due to the appellant's service-connected disabilities is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs