Citation Nr: 1303405 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-38 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from November 1993 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2008, the Veteran testified during a Board hearing at the RO before the undersigned Veterans Law Judge. This case was previously remanded for additional development in October 2010 and March 2012. In October 2010, the Board remanded the claim to obtain a medical opinion. The case was remanded in March 2012 to obtain the Veteran's vocational rehabilitation records and to obtain another medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran is service-connected for residuals of low back strain, rated as 40 percent disabling, residuals of fracture of the distal 3rd right tibia/ fibula, rated as 20 percent disabling, residuals of right hip strain, rated as 20 percent disabling, ankle strain, rated as 10 percent disabling, and left hip degenerative joint disease, rated as 10 percent disabling. The combined evaluation of the Veteran's service-connected disabilities is 70 percent. 2. The weight of the competent, probative and credible evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a 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) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2012. That letter fully addressed the requisite notice elements. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. Although the letter was provided after the rating decision on appeal, any defect with respect to the timing of the notice was cured by readjudication in the October 2012 Supplemental Statement of the Case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). To the extent there exists any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. Based on a review of the entire file, it is clear that the appellant and his representative have a full understanding and actual knowledge of the elements required to prevail on the claim. Moreover, neither the appellant nor his representative has raised allegations of prejudice resulting from any error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. The Veteran was afforded an adequate VA examination for his claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim The Veteran seeks a total disability rating based on individual unemployability due to his service-connected disabilities. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court noted, "For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran...The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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." When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran asserts that he is unemployable due to his service-connected disabilities. In statements in support of his claim, the Veteran has indicated that he last worked in 2006. The Veteran's service-connected disabilities include residuals of low back strain, rated as 40 percent disabling; residuals of fracture of the distal 3rd right tibia/ fibula with hip pain and altered gait due to shortening, rated as 20 percent disabling; residuals of right hip strain, rated as 20 percent disabling, ankle strain, rated as 10 percent disabling and left hip degenerative joint disease, rated as 10 percent disabling. There is one disability rated as 40 percent disabling and the combined evaluation the Veteran's service-connected disabilities is 70 percent; therefore the schedular criteria of § 4.16(a) are met. Upon VA examination of his back in July 2005, the Veteran reported that he was not working. He stated that his low back and midback bothered him on the job while both standing and sitting. In September 2008, the Veteran testified at a Board hearing. The Veteran stated that he had difficulty working because he had to take frequent breaks. The Veteran had a VA examination in December 2010. The VA examiner indicated that the claims file was reviewed. The Veteran reported that his usual occupation was in customer service. He stated that his main job was working at a county 911 center taking phone calls as an operator. He reported that he was let go from that job because he was coming to work late and because he had to take too many breaks because he had to move around a lot. He stated that he came to work late frequently because when he would wake up and try to get ready for work, he had a lot of difficulty because of pain in the joints and lower back, which would delay him. He stated that he also had difficulty sitting too long, and that is why he had to take too many breaks. The Veteran reported that, after he was let go from that job, he worked for a phone company in retail collecting bills and offering phone services. The Veteran reported that that job was in 2006, and that was the last time he worked. He said he was let go from that job for similar reasons, as he came to work late and took too many breaks, and they could not accommodate that. The Veteran reported that he was in vocational rehabilitation at VA but was told that he was not likely to be able to get a job. The Veteran said that he thought because of the economy and too many applicants that he did not get offered a job because employers were picky and chose people who did not have disabilities. The Veteran stated that he was in constant pain, which made it difficult for him to sleep at night. He stated that he takes pain medications but they did not help completely. He reported that he had not had surgeries for his problems and had been told that surgery might make things worse. He reported that he uses a cane but did not have one with him at the examination because he was trying to get a new one. The examiner indicated that, after reviewing the remand and the records and claims file, as well as the previous examinations and evaluating the patient, it was his opinion that the Veteran was unable to secure or maintain substantially gainful employment. The examiner stated that the Veteran is not likely to be able to maintain employment in physically demanding work based upon his service-connected conditions. The examiner opined that, in terms of sedentary work, the Veteran is at least as likely as not to be able to do sedentary type work, such as a desk job. The examiner noted that the Veteran had been applying to such work in customer service, but he had not been able to secure such employment, possibly secondary to the status of the economy or because he had disabilities listed on his resume as stated by the Veteran. The examiner further stated that, if the Veteran is able to secure such employment in sedentary work, then he is at least as likely as not to be able to do sedentary work with some accommodation provided by his employer. In March 2012, the Veteran had a VA examination for his service-connected right ankle, back and hip disabilities. The examiner provided range of motion findings, and addressed the impact of the Veteran's service-connected disabilities on his ability to work. The examiner stated that the Veteran's examination, particularly range of motion (hips, lumbar spine and ankle) and discomfort with such on focused examination was grossly inconsistent with that observed when performing non-examination activities, the most inconsistent he had witnessed as an examiner. The examiner indicated that the figures are what he demonstrated on focused examination, however they are a misrepresentation of his ability. The examiner stated that they should not be used for rating purposes, not should any of the exam positives as, "I feel this was a completely unreliable and fabricated examination." The RO referred the case to another VA examiner in September 2012 for an addendum opinion because the March 2012 opinion did not address whether the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. The VA examiner indicated that the claims file was reviewed. The examiner cited the March 2012 VA medical opinion, in which the orthopedic specialist observed gross physical exam inconsistencies. The examiner opined that the Veteran would not be able to perform the duties associated with heavy or moderate physical labor; he would be able to physically perform all duties associated with sedentary employment. In October 2012, the orthopedic physician who examined the Veteran in March 2012 indicated that he had again reviewed the claims file and the case and concurred with the VA examiner's opinion expressed in September 2012. VA records reflect that the Veteran has been in a VA vocational rehabilitation program. A narrative report dated in December 2004 indicated that the Veteran was found to have a serious employment handicap resultant of his disabilities. The report noted that Veteran would have difficulty overcoming his disabilities because he did not actively participate in physical therapy. A vocational rehabilitation evaluation dated in February 2005 noted that an extended evaluation was appropriate because the Veteran had not demonstrated an ability to maintain gainful employment and also indicated difficulty with ongoing medical conditions. Records from the vocational rehabilitation program indicate that the Veteran initially completed an associate's degree in emergency administration. A June 2010 report by a VA employment counselor noted that the Veteran provided documentation of an aggressive, full-time job search. E-mail correspondence between the Veteran and the VA employment counselors shows that the Veteran expressed interest in applying to various jobs which were suggested by the counselors and also provided documentation of lists of jobs for which he had applied. The documentation included cover letters and resumes that the Veteran submitted to potential employers. For example, in September 2007, the Veteran submitted a resume and cover letter to his vocational rehabilitation counselor that reflected that that Veteran would seek employment and that he believed that he had the ability to work. He reported that he had extensive experience in customer service, had comprehensive skills in operations, retail and in-depth management skills. He also indicated that he was a service-oriented individual who is able to effectively interact with co-workers as well as the general public. His resume reflected his employment experience and there was no indication in that document that he was unemployable due to his service-connected disabilities. In February 2008, the Veteran submitted the same draft cover letter and resume regarding application for employment to his vocational rehabilitation counselor. The record indicates that the VA vocational rehabilitation counselor advised the Veteran of employment opportunities and that the Veteran responded that he was interested in applying for those jobs. In March and May 2010, the Veteran again submitted a cover letter and resume indicating his skills, ability and interest in employment. In July 2010, the Veteran reported that he was continuing his job search, but he was finding that he needed a bachelor's degree to work in the emergency management field. A report of training dated in October 2010 noted that the Veteran was unable to obtain employment with the degree he had previously completed and was subsequently redeveloped for a bachelor's degree in order to make him more marketable. A report of training dated in November 2011 noted that the Veteran was enrolled in a college program working toward a bachelor's degree in public safety administration. The Veteran's anticipated graduation date was July 2012. The Veteran reported that his back and his knee were bothering him but did not he did not report that his knee and back disabilities would prevent him from working. The Board finds that the weight of the evidence of does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability and a TDIU is not warranted. The Board acknowledges the Veteran's testimony and statements regarding his difficulties in obtaining employment due to his service-connected disabilities. The vocational rehabilitation records show that the Veteran has an employment handicap, but the records do not establish that the Veteran's service-connected knee and back disabilities, alone, would prevent him from working. The vocational rehabilitation records reflect that the Veteran was seeking employment and indicating to employers that he was capable of working. While the vocational rehabilitation records show that the Veteran reported that his back and knees bothered him, those records do not show that he reported that he was unable to pursue his educational training or that he was unable to seek or maintain employment. As such, the Board finds that his contention that he is unemployable due to his service-connected disabilities is outweighed by the probative evidence of record which indicates the ability to pursue and maintain employment. In addition, the weight of the competent and probative medical evidence of record indicates that the Veteran is capable of sedentary employment. The December 2010 VA examiner initially noted that the Veteran was unable to secure or maintain substantially gainful employment but then went on to fully explain that while the Veteran was not likely to be able to maintain employment in a physically demanding job, he is at least as likely as not able to do sedentary work. The examiner also noted that the Veteran had been applying for work in customer service but he had not been able to secure a job due to the economy or because his resume listed disabilities. As noted above, the Court has held that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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. The subsequent VA examiner in September 2012 again reviewed the claims file and clearly concluded that while the Veteran would not be able to perform duties associated with heavy or moderate physical labor, he would be able to physically perform all duties associated with sedentary employment. There is no other competent or probative medical opinion of record indicating that the Veteran is unable to secure or following a substantially gainful occupation as a result of his service-connected disabilities. The VA examinations and opinions are competent and probative because they are based on a review of the claims file and pertinent clinical findings regarding the service-connected disabilities and provide the bases for the opinions expressed. For these reasons, the Board finds that the weight of the competent, probative and credible evidence does not demonstrate that the criteria for TDIU have been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs