Citation Nr: 1301468 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-22 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to September 1953. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Since, however, the claim required further development before being decided on appeal, in May 2012 the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. This additional development especially included obtaining supplemental medical comment on the Veteran's employability. FINDINGS OF FACT 1. The Veteran has one service-connected disability, amputation of his left thumb, index, and middle fingers, which is rated as 60-percent disabling. 2. The most probative medical and other evidence of record indicates this disability does not preclude him from obtaining and maintaining employment that would be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW The criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including, as specifically concerning this TDIU claim, the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, with regards to the notice requirements pertaining to increased-rating claims, in particular, which include a claim of entitlement to a TDIU, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement, not also citation to alternative diagnostic codes (DCs) or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Here, a November 2008 letter satisfied these notice obligations in terms of apprising the Veteran of the type of evidence and information needed to substantiate this TDIU claim and of his and VA's respective responsibilities in obtaining this supporting evidence. Consider, as well, that the RO sent him that letter prior to initially adjudicating this claim in the March 2009 decision at issue in this appeal, so in the preferred sequence. An additional VCAA letter was more recently sent to him in May 2012, while this claim was on remand, and it, too, provided information concerning his claim, including regarding its then present status. And his claim since has been readjudicated in a November 2012 SSOC. He therefore has received all required notice concerning this TDIU claim. VA also has a duty to assist him in fully developing the evidence concerning this claim, which includes assisting him in the procurement of relevant records and, when necessary, providing an examination for a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. To this end, the RO obtained his service treatment records (STRs) and post-service VA evaluation and treatment records, also his lay statements. As well, he had a VA compensation examination in December 2008 for a medical opinion concerning the determinative issue of whether his service-connected disability precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. After preliminarily reviewing the file, however, including that opinion, the Board determined that opinion was inadequate to decide this TDIU claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). So the Board remanded this claim in May 2012 for a supplemental opinion on this determinative issue of employability, and this additional (addendum) opinion since has been provided in June 2012. It is responsive to this critical issue and, therefore, in compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance.). Significantly, the Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. Indeed, to the contrary, when responding to the November 2012 SSOC, his accredited representative indicated they did not have any additional evidence to submit regarding this appeal. So, in order to expedite processing of this claim, they asked that the AMC immediately return the case to the Board, also noting that, if they located and elected to submit evidence at a later time, they would waive their right to have the RO/AMC initially consider it as the Agency or Original Jurisdiction (AOJ). Therefore, any additional evidence subsequently submitted would not be cause for again remanding this claim, rather, they would ask the Board to consider the new evidence in the first instance and proceed with the adjudication of this appeal. The Veteran, himself, also had earlier indicated in an August 2012 statement in support of claim (on VA Form 21-4138) that he had been interviewed for compensation and pension (C&P) purposes in June 2012, so since the Board's remand of his claim in May 2012. He therefore asked to please make the decision on his case, which is what the AMC subsequently did in the November 2012 SSOC. Hence, no further notice or assistance to him with this claim is required. 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). Given all that has occurred, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate this claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not result in any significant benefit to the Veteran). He has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Claim of Entitlement to a TDIU In September 2008, the Veteran claimed entitlement to a TDIU - alleging he is unable to work on account of the severity of his service-connected disability, i.e., amputation of his left thumb, index, and middle fingers, rated 60-percent disabling. According to an Income-Net Worth and Employment Statement (VA Form 21-527) he later submitted in November 2008, he has a high school (12th grade) education and had worked most recently as a general worker at a hospital until 1986. In also specifying the disabilities preventing him from working, however, he cited not only his service-connected hand disability, but also mental conditions of schizophrenia and dementia with behavioral disturbance. Moreover, in an accompanying statement in support of claim (VA Form 21-4138) that he also submitted in November 2008, he asked to be evaluated for aid and attendance (A&A) benefits since he was now, since November 2008, a resident in a private nursing home paying an $1,100 monthly fee. He indicated he needed assistance and supervision due to his mental conditions, so presumably referring to his schizophrenia and dementia with behavioral disturbance, not also his service-connected left hand disability. But in support of his claim for a TDIU, especially, the Veteran also submitted a November 2008 letter from Dr. N.A.O, M.D., a private physician. In that letter, Dr. N.A.O. indicated the Veteran was unable to work due to loss of functionality of his left hand. This physician also indicated the Veteran suffered from high blood pressure, circulatory problems, depression, dementia, glaucoma and schizophrenia. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. 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 his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2011). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). Because he has a 60 percent rating for the amputated fingers on his left hand, the Veteran satisfies the threshold minimum rating requirements of this governing regulation for consideration of a TDIU - that is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). So resolution of this appeal instead turns on whether his service-connected disability precludes him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disability, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran was afforded a VA compensation examination in December 2008 in response to his claim of entitlement to a TDIU. The examiner acknowledged, however, that he did not review any records, so none apparently concerning the history of the Veteran's service-connected disability, his level of education, training or work history, either. The opinion therefore would not have the proper factual foundation and predicate, so for this reason alone would be insufficient to decide this TDIU claim. See, e.g., Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Owens v. Brown, 7 Vet. App. 429 (1995); and Swann v. Brown, 5 Vet. App. 229, 233 (1993). That is to say, any opinion offered would not be fully informed. The Veteran is entitled to an examination that takes into account all relevant background information, including prior medical evidence. Roberts v. Derwinski, 2 Vet. App. 387 (1992). That December 2008 examiner stated the Veteran's service-connected disability would preclude him from obtaining "gainful employment in tasks requiring the use of both hands." However, the examiner did not discuss what exactly this meant or entailed, including insofar as whether the Veteran was precluded from all types of employment as a result of his service-connected disability that could be considered substantially gainful versus just marginal. The Veteran acknowledged retiring in 1986 due to varicose veins and venous insufficiency (see the December 2008 VA psychiatric examination report). However, he maintains that his service-connected left hand disability alone precludes any further employment. And because of the failings of the December 2008 examination and opinion, the Board remanded this claim in May 2012 for additional medical comment on this determinative issue of employability. Consequently, the Veteran's claims file was returned to the examiner that had performed the December 2008 VA compensation evaluation for a supplemental medical opinion. In providing this requested additional comment in June 2012, this examiner acknowledged the prior opinion that the Veteran was unable to perform job activities requiring use of both hands. Nevertheless, this examiner indicated the Veteran is not precluded from obtaining gainful jobs of a more sedentary nature, explaining that a sedentary job is still a viable possibility because he still has use of his right hand, which is his dominant one. Based on this VA examiner's opinion and the other evidence of record, the Board finds the Veteran's service-connected disability is not shown to be so disabling as to preclude him from obtaining and maintaining substantially gainful employment. This VA examiner, both in December 2008 and again in June 2012, determined that, although the Veteran is precluded from employment that would necessarily involve or require use of both hands, he is not precluded from performing employment that does not, primarily because he still has full use, function and availability of his right hand, which so happens to be his dominant hand, so presumably the one he most uses and relies on. This examiner, then, considers employment albeit with this accommodation still substantially gainful versus just marginal in comparison, which leaves open the possibility of employment that is more sedentary in nature. Significantly, the examiner pointed out that, even though the Veteran has disability of his left hand, he is not precluded from being gainfully employed because he can still do sedentary-type work with his dominant right hand. In December 2012 written argument, so in response to this VA examiner's supplemental opinion, the Veteran's representative maintained there was no discussion of the Veteran's educational or employment histories in the VA opinion. That notwithstanding, the VA examiner clearly indicated that he had reviewed the claims file, so there is no suggestion this review did not include consideration of the Veteran's educational and/or employment histories. It equally deserves reiterating that, unfortunately, the Veteran also suffers from a number of other disabilities and ailments that are not service connected, and even he has at times cited these other disabilities (especially his mental conditions of schizophrenia and dementia with behavioral disturbance) as the primary reasons he is now in need of assistance and supervision (A&A). And, as explained, while not germane to whether his service-connected left hand disability, itself, renders him unemployable, the fact remains that his overall impairment, including from both occupational and functional standpoints, is multi-factorial. And VA is precluded from considering these nonservice-connected disabilities when adjudicating this TDIU claim. Thus, in conclusion, the preponderance of the evidence is against this TDIU claim. And as the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine is inapplicable, and this claim must be denied. See 38 U.S.C.A. § 5107(b)(West 2002); 38 C.F.R. §§§ 3.102, 4.3; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER This claim of entitlement to a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs