Citation Nr: 1302287 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-13 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to the Veteran's service-connected disabilities (TDIU), prior to December 15, 2009. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1970 to April 1986. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, from a May 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas, that denied entitlement to a TDIU. The United States Court of Appeals for Veterans Claims (Court) has essentially held that where a decision grants a total rating for service connected disability, the underlying claim may be deemed to raise a claim for special monthly compensation. Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the question of entitlement to special monthly compensation is referred to the RO for initial adjudication. FINDINGS OF FACT 1. The Veteran has been in receipt of a 100 percent schedular rating since December 15, 2009. 2. Prior to December 15, 2009, the Veteran was service-connected for diabetes mellitus, peripheral microvascular disease of the lower extremities, peripheral neuropathy of the extremities, amputation of toes of the right foot, a left knee disability, tinea pedis, and diabetic retinopathy. The Veteran's combined rating was 80 percent. 2. After December 14, 2009, the Veteran was service-connected for diabetes mellitus, peripheral microvascular disease of the lower extremities, peripheral neuropathy of the extremities, amputation of toes of the right foot, chondromalacia of the left knee, hypertension, tinea pedis, and diabetic retinopathy. The Veteran's combined rating was 100 percent. 3. The evidence of record indicates that the Veteran worked full time as a stone cutter until March 9, 2007 and stopped working due to a leg disability that was subsequently service connected. 4. The Veteran's claim for TDIU was received on February 11, 2009. 5. A VA physician has concluded that the Veteran's service-connected disabilities precluded him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to the Veteran's service-connected disabilities have been met since February 11, 2009, except for periods when a 100 percent rating has been in effect. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 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). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the AOJ has substantially satisfied the duties to notify and assist as required by the VCAA. He was provided VCAA notice in a March 2009 letter, prior to initial adjudication of the claim. All identified records were obtained and a medical opinion was obtained. The Veteran's application for TDIU benefits has been recognized as being received at the RO on February 11, 2009. In the application he reported that he had last worked full time in 2003. Earlier dated VA treatment and examination reports did not mention the Veteran's employment status. Records obtained prior to February 2009, did not report that the Veteran was unemployable. On a VA examination in July 2007, it was reported that the Veteran was working full time; but had been assigned different duties. The record contains no reports that the Veteran claimed TDIU benefits prior to February 11, 2009through either the submission of a formal or informal claim. Moreover, the medical records prior to that date do not contain any information or statements that could be construed an informal claim for benefits. Additionally, when the Veteran underwent the initial medical examinations in conjunction with his claim for benefits, which occurred in 2007, neither the Veteran nor the examiners commented on the Veteran's employability (or the lack thereof). The Board also notes that during the 2007 exams, the Veteran did not tell any of the VA health care providers that he, the Veteran, was restricted or prohibited from performing some type of employment as a result of his purported service-connected disabilities. The Veteran's disabilities and the ratings assigned to those conditions are listed below: Prior to April 30, 2007, his combined rating was noncompensable. From April 30 to June 30, 2007, he was in receipt of a temporary total (100 percent) rating. Effective July 1, 2007, his ratings were: Diabetes mellitus 40 percent Peripheral vascular disease - right lower extremity 20 percent Peripheral vascular disease - left lower extremity 20 percent Peripheral neuropathy - right lower extremity 10percent Peripheral neuropathy - left lower extremity 20 percent Peripheral neuropathy - right upper extremity 10 percent Peripheral neuropathy - left upper extremity 10 percent Amputation - 4th and 5th toes - right foot 10 percent Left knee condition 0 percent Tinea pedis 0 percent Diabetic retinopathy 0 percent The combined rating was 80 percent from July 1, 2007, to December 14, 2009. For the period after December 14, 2009, the Veteran's service-connected disabilities and the assigned disability ratings were as follows: Diabetes mellitus 40 percent Peripheral vascular disease - right lower extremity 20 percent Peripheral vascular disease - left lower extremity 20 percent Peripheral neuropathy - right lower extremity 20percent Peripheral neuropathy - left lower extremity 40 percent Peripheral neuropathy - right upper extremity 30 percent Peripheral neuropathy - left upper extremity 20 percent Amputation - 4th and 5th toes - right foot 10 percent Left knee condition 10 percent Hypertension 10 percent Diabetic retinopathy 10 percent Tinea pedis 0 percent For the period after May 14, 2010, the Veteran's service-connected disabilities and the assigned disability ratings were as follows: Diabetes mellitus 40 percent Peripheral vascular disease - right lower extremity 20 percent Peripheral vascular disease - left lower extremity 40 percent Peripheral neuropathy - right lower extremity 20percent Peripheral neuropathy - left lower extremity 40 percent Peripheral neuropathy - right upper extremity 30 percent Peripheral neuropathy - left upper extremity 20 percent Amputation - 4th and 5th toes - right foot 10 percent Left knee condition 10 percent Hypertension 10 percent Diabetic retinopathy 10 percent Tinea pedis 0 percent A combined 100 percent rating has been in effect since December 15, 2009. The Court has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period) Accordingly, for the period beginning December 15, 2009, the question of entitlement to TDIU is moot, because the Veteran was in receipt of a 100 percent rating. The Board must nonetheless consider whether the Veteran was entitled to TDIU during any other part of the appeal period. The Veteran and his accredited representative contend that he has been unable to maintain substantially gainful employment as a result of the symptoms and manifestations produced by his service-connected disabilities in general. 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 Veteran'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, 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 evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. If the evidence demonstrates that the service member is unemployable by reason of his service-connected disabilities, but fails to meet the percentage standards discussed above, the claim must be submitted to the Director of Compensation and Pension (C&P) Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (2012). In this case, as the Veteran's diabetes mellitus, peripheral neuropathy of the extremities, peripheral microvascular disease of the lower extremities, and amputation of toes share a common etiology and result from a single disease, diabetes mellitus, such are considered one disability for TDIU purposes. After December 15, 2009, those same noted disabilities along with diabetic retinopathy and hypertension also share the same common etiology. Therefore, combining the Veteran's "common disabilities" under 38 C.F.R. § 4.25 (2012), he has at least a 60 percent evaluation for such combined disabilities. As such, the percentage criteria under 38 C.F.R. § 4.16(a) (2012) have been met. [As an aside, even if the disabilities are not combined, the Veteran did have at least one disability rated as 40 percent disabling and had a combined rating of 80 percent, and as such, he also met the percentage criteria under 38 C.F.R. § 4.16(a) (2012). The issue, then, is whether his service-connected disabilities prevent him from securing and maintaining substantially gainful employment during the appeal period prior to December 15, 2009. The record reflects that the Veteran has completed four years of high school and no college level education. Prior to submitting his initial claim for VA compensation benefits, the Veteran worked for a marble (stone) company as a saw operator and sealer and as a stone cutter. He resigned from that position on March 9, 2007, because he could no longer do the work. There is no indication from the Veteran's claims folder that he has ever received vocational rehabilitation training or any other specialized training. Subsequent to the Veteran's application for TDIU benefits, he underwent a VA General Medical Examination in order to obtain medical information concerning his ability to work. This examination was accomplished in March 2009. Upon completion of the examination, the medical doctor wrote: After thoroughly reviewing all private and service medical records along with today's complete detailed history and physical, it is my professional medical opinion that veteran [his name] is clearly incapable of securing or following a substantially gainful occupation directly due to his service connected disabilities. This opinion was determined without regard for veteran's age, sex, race, current financial status, or any non-service connected disabilities. Subsequently, the Veteran submitted an employment verification form from his most recent permanent employer--the marble company. On that form, the employer specifically noted that the last time the Veteran had worked for the company was March 9, 2007, and that he had left the job because he could no longer perform the work due to physical frailties. The remaining medical records contained in the two plus volumes of the Veteran's claims file do not contain any additional information concerning the Veteran's ability to obtain and maintain gainful employment and the effects of his service-connected disabilities on that ability. The Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for a Veteran 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 Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Moreover, there is no statute or regulation that requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable because of one or more service-connected disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994). As previously noted, 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 Veteran 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 Veteran'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 Veteran'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 Board concludes that the reasoning found in Hodges v. Brown, 5 Vet. App. 375 (1993), et. al. applies to this case. While the medical records are not without some ambiguity, a VA physician, without hesitation or qualification, has pointedly stated and opined that the Veteran is totally disabled as a result of his service-connected disorders. Hence, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. Therefore, pursuant to 38 C.F.R. § 4.16(a) (2012), it is the decision of the Board that the Veteran's service-connected disabilities render him unable to attain and maintain gainful employment, said disabilities have rendered him unemployable for the entire period on appeal prior to December 15, 2009, and a total disability rating for compensation based on individual unemployability due to his service-connected disorders is warranted. To determine the appeal period for consideration, the Board must look to the date of the Veteran's claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2) (2012); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). The Veteran's claim was received on February 11, 2009. The record shows that the increase was factually ascertainable in April 2007, when service connection was granted for diabetes and its residuals including disability of the lower extremities and the record shows he had left his last employment due to an associated lower extremity disability. Because entitlement arose more than one year before any claim, the appeal period is the date of claim, February 11, 2009. Id. The Veteran's claim is granted. With respect to the period after December 14, 2009, the Court has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). As such, for the period after December 14, 2009, the Veteran's claim for entitlement to a TDIU is moot and no further discussion is deemed necessary. ORDER Entitlement to a TDIU, is granted from February 11, 2009 to December 15, 2009. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs