Citation Nr: 1305474 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 07-21 054 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to October 1972. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2007 rating decision in which the RO denied a TDIU. In February 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) addressing was issued in May 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2007. In December 2010, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In December 2010, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claim (as reflected in a January 2012 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In February 2012, the Veteran submitted additional evidence directly to the Board. The Veteran's representative provided a waiver of initial RO consideration of the evidence in March 2012. This evidence was accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). In a March 2012 decision, the Board denied the claim for a TDIU. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the Court issued an Order granting the parties' joint motion for remand, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The Board notes that while the Veteran was previously represented by Disabled American Veterans; in October 2012, the Veteran executed a power-of-attorney in favor of Robert V. Chisholm with regard to the claim on appeal. The Board recognizes the change in representation. In February 2013, the Veteran submitted additional evidence directly to the Board. The Veteran's attorney provided a waiver of initial RO consideration of the evidence in February 2013. This evidence has been accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran has been granted service connection for chronic renal insufficiency with hypertension (rated as 60 percent disabling); total right knee replacement (rated as 30 percent disabling); status post total left knee replacement (rated as 30 percent disabling); low back syndrome with degenerative joint disease and left side radiculopathy (rated as 20 percent disabling); diabetes mellitus type II with erectile dysfunction (rated as 20 percent disabling); bilateral high frequency hearing loss (noncompensably disabling); and gout (noncompensably disabling). 3. The Veteran's service-connected disabilities have met the percentage requirements for the award of a TDIU since March 28, 2006, and the competent evidence on the question of whether the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment is, at the very least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met from March 28, 2006. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim for a TDIU, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU, as service connection is currently in effect for chronic renal insufficiency with hypertension, rated as 60 percent disabling; total right knee replacement, rated as 30 percent disabling; status post total left knee replacement, rated as 30 percent disabling; low back syndrome with degenerative joint disease and left side radiculopathy, rated as 20 percent disabling; diabetes mellitus type II with erectile dysfunction, rated as 20 percent disabling; bilateral high frequency hearing loss, rated as 0 percent disabling; and gout, rated as 0 percent disabling. Effective March 28, 2006, the Veteran had a combined rating of 80 percent, and from February 2009 he had a combined disability rating of 90 percent. Thus, the remaining question is whether the Veteran's service-connected disabilities, in fact, render him unemployable. See 38 C.F.R. §§ 3.340, 3.341, 4.16.. The central 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board also points out that, in adjudicating a claim for VA benefit, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See generally 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Considering the pertinent evidence in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. Initially, the Board recognizes that the Veteran, who is 77 years old, has not been employed at any time pertinent to this appeal. However, as indicated above, unemployed does not mean unemployable. On his October 2006 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) filed on October 30, 2006, the Veteran indicated that he last worked in 1993 as a laboratory technician. The Veteran denied leaving his last job due to his disability(ies), and he noted that he had not tried to obtain employment since he became too disabled to work. He indicated that he had completed 2 years of college education. VA treatment and private treatment records reflect evaluation of and treatment for the Veteran's service connected disabilities; however, none of these records discuss the Veteran's employability. The Veteran was afforded a VA general medical examination in July 2010. At that time, the Veteran indicated that he worked as a pharmaceutical laboratory technician and that he retired in 1993. He told the examiner that his position was "done away with." In regards to his diabetes mellitus, the Veteran stated what he was unable to work in the heat. He also reported some eye problems which he believed were associated with his diabetes. The Veteran noted physical limitations due to his knee and back disabilities. He stated that he could only walk for about half an hour and that his back constantly aches. The examiner noted that there were no function limitations associated with the Veteran's chronic renal insufficiency. In regards to the Veteran's employability, the examiner opined that the Veteran would unlikely be able to obtain and maintain any physical employment due to his knee and back disabilities. The Veteran would also have difficulty performing physical jobs due to his report of low blood sugars associated with his diabetes. The examiner also stated that it was "less likely" that the Veteran would be able to work in a sedentary position given his chronic back and knee pain. Finally, the examiner concluded that there was insufficient information to determine the impact of the Veteran's diabetic retinopathy on his employability. In an August 2010 addendum opinion, the July 2010 VA examiner opined that it was unlikely that the Veteran could obtain and maintain physical employment due to pain associated with his knee and back disabilities, as well as his reported low blood sugars. She further stated that the Veteran's knee and back disabilities would not preclude sedentary employment. Finally, she concluded that the Veteran's subjectively reported low blood sugars and visual changes would not preclude sedentary employment. The Veteran underwent a VA eye examination in May 2011. The impression was mild non proliferative diabetic retinopathy, dry eye syndrome, and pseudophakia. The examiner stated that the Veteran's dry eye syndrome and pseudophakia were not related to service-connected diabetes. In regards to each of the Veteran's eye disabilities, the examiner concluded that it was more likely than not that the disability does not preclude the Veteran from obtaining or retaining substantially gainful employment. The Veteran underwent a VA general medical examination in July 2011. The Veteran reported that he retired in 1993 and that his retirement was not health related. The Veteran reported that his hearing loss did not limit his employability. The examiner concluded that the combination of the Veteran's back, bilateral knee, and diabetes disabilities prevent him from performing the acts required of physical employment. In this regard, the examiner noted that the Veteran is unable to stand or walk for long periods of time, or to perform regular bending and lifting activities. The examiner also concluded that the Veteran did not have any service connected disability(ies) that would prevent sedentary employment. The Board denied the TDIU claim in a decision issued in March 2012. That decision was appealed and in September 2012, the Court issued an Order granting the parties' joint motion for remand, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion (to be further discussed herein). In February 2013, additional evidence was added to the file which was accompanied by a waiver. This evidence includes a January 2013 vocational assessment provided by a vocational consultant, based upon review of the claims folder. He indicated that having reviewed medical records and reports dating back to at least November 2003, it was clear that the Veteran had been unable to work competitively since leaving Pfizer in 1993. The consultant opined, within a reasonable degree of vocational certainty, that the Veteran's service-connected conditions had resulted in his inability to secure and follow a substantially gainful occupation since 1993. Essentially, the record appears to contain conflicting medical opinions on the question of whether the Veteran's service-connected disabilities actually render him unemployable. On one hand, the July 2010 VA examiner stated that the Veteran was not capable of physical employment and it was it was "less likely" that the Veteran would be able to work in a sedentary position. On the other hand, in an August 2010 addendum opinion, the July 2010 VA examiner opined that the Veteran was capable of sedentary employment. Additionally, the July 2011 VA examiner concluded that the Veteran's service-connected disabilities did not preclude sedentary employment. Still subsequently, the January 2013 opinion of a vocational consultant reflects that, within a reasonable degree of vocational certainty, that the Veteran's service-connected conditions have resulted in his inability to secure and follow a substantially gainful occupation since 1993. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the September 2012 joint motion, it was pointed out that the Board had essentially discounted the July 2010 VA medical opinion, on the basis that it was contradicted by the August 2010 addendum, then ultimately placed significant reliance on the negative July 2011 VA medical opinion to support the denial of the claim, suggesting that these opinions were not appropriately weighed. In July 2010, a VA examiner opined that the Veteran is "less likely" able to perform sedentary employment due to his knee and back disabilities. This evidence, in and of itself, was based on a comprehensive VA medical examination and is considered both competent and probative evidence, as well as being favorable to the Veteran's claim. Accordingly, the Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). In August 2010, the same VA examiner stated that the Veteran's disabilities do not preclude sedentary employment. At that time, the examiner did not provide any rationale for her change in opinion. In the precedent decision of Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), the Court held that the probative value of a medical opinion comes from factors such as whether it is factually accurate, fully articulated, and has a sound reasoning for the conclusion. Absent any reasoning supporting the revised conclusion made in the addendum, this negative evidence is of less probative value in this case than the July 2010 positive VA opinion. By contrast, in July 2011 a VA examiner opined that the Veteran's service-connected disabilities did not preclude him from sedentary employment. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and medical records and examining the Veteran. The examiner provided a rationale for the opinion; stating that the Veteran's physical disabilities would limit his sitting time to one hour; however, he would be able to perform a sedentary job as long as he had intermittent breaks. The examiner also addressed the functional effects of each service-connected disability, noting that the Veteran's diabetes would not preclude sedentary employment, his gout is inactive (no functional limitation), his chronic renal insufficiency with hypertension does not impact daily function, and his nephropathy would not affect his ability to maintain employment (per the May 2011 VA eye examiner). This opinion, although negative, was again based on a comprehensive VA medical examination and is considered both competent and probative evidence as relates to the Veteran's claim. Accordingly, the Board finds no adequate basis to reject this competent medical opinion based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Also pertinent in this case in the 2013 opinion of the vocational consultant. At the outset, the Board finds the opinion of the vocational specialist to be at least as probative as that of the VA examiners. In so finding, the Board notes that the vocational specialist indicated that, like the VA examiners, he also had access to the Veteran's claims file, and performed an telephone interview of the Veteran. As with the VA examiner opinions, the vocational specialist provided a complete and thorough review of the Veteran's symptomatology and its impact on employability, as well as recording a substantial rationale for the conclusions reached. As a vocational specialist, he is also presumed to have special expertise in the area, and his findings are consistent with the medical evidence of record, to include VA examinations. The report accounts for and discusses the Veteran's lay employment history, training, education and experience as well as his physical limitations due to service-connected disability. Ultimately, the vocational consultant opined, within a reasonable degree of vocational certainty, that the Veteran's service-connected conditions had resulted in his inability to secure and follow a substantially gainful occupation since 1993. Essentially, the Board finds that the competent evidence in this case is, at least, in relative equipoise with respect to the matter of whether the nature and severity of the Veteran's service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. Where, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Given the evidence noted above, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU are met; therefore, the claim should be granted. As for the appropriate effective date for the award of a TDIU, it appears that there are two possibilities, the date the TDIU claim was filed, October 30, 2006; or the date that the Veteran's service-connected disabilities met the schedular percentage requirements for the award of a TDIU under 38 C.F.R. § 4.16(a), March 28, 2006. Under the provisions of 38 C.F.R. § 3.400(o)(2), a claim for increase (such as a TDIU claim) may be effective as of the earliest date that it was factually ascertainable that an increase in disability occurred if a claim is received within one year of that date. In fairness, the Board finds that as the Veteran's combined rating was 80 percent from March 28, 2006, meeting the schedular requirements of 38 C.F.R. § 4.16(a), and since the evidence on file suggests that from that time, the nature and severity of the Veteran's service-connected disabilities prevented him from obtaining and retaining substantially gainful employment, the appropriate effective date for the award of a TDIU is March 28, 2006. See 38 C.F.R. § 3.400(o)(2). ORDER A TDIU is granted from March 28, 2006, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs