Citation Nr: 1307484 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 03-33 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to April 10, 2001, for the award of a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1952 to July 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which, in pertinent part, granted entitlement to a TDIU, effective April 10, 2002. An August 2008 Board decision granted the Veteran's claim for entitlement to an effective date prior to April 10, 2002 for the award of a TDIU, and it instead assigned an effective date of April 10, 2001. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Court vacated the Board's August 2008 decision in a February 2011 Memorandum Decision. This case again came before the Board in September 2011, and while the Board's September 2011 decision declined to disturb the previously-assigned April 20, 2001 effective date for a TDIU, it also declined to grant an earlier effective date for such TDIU. The Veteran timely appealed the Board's decision to the Court. In August 2012, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated and remanded the September 2011 decision for proceedings consistent with the findings in the Joint Motion, which will be discussed in further detail below. The Veteran's representative has submitted letters to the Board without a waiver of review of this evidence in the first instance by the agency of original jurisdiction. The Veteran is not prejudiced by the Board's review of these materials in the first instance because these materials are both duplicative of other materials in the record and are not pertinent to the substance of the issue being decided on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Between October 1996 and April 9, 2001, the evidence does not establish that the Veteran was unable to obtain and sustain gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for an effective date prior to April 10, 2001, for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b), 3.157, 3.340, 3.400, 4.15, 4.16, 20.200, 20.201, 20.202, 20.302, 20.1100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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 Veteran must 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 Veteran). 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 Veteran. 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, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The required notice must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Nevertheless, the Board notes that such notice is unnecessary in this case because the Veteran is challenging the effective date for the grant of a TDIU from a September 2002 rating decision. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003). Thus, the Board finds that under the holding in VAOPGCPREC 8-03, further notice from VA to the Veteran is not required with regard to his claim for an earlier effective date for the grant of a TDIU. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, all identified and available VA medical records, and all identified and available private medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran's records from the Social Security Administration (SSA) have also been obtained and associated with the claims file. VA has further assisted the Veteran and his attorney throughout the course of this appeal by providing them a statement of the case and a supplemental statement of the case, which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran was provided with the opportunity to provide testimony before a Veteran's Law Judge, and he declined such opportunity. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. TDIU As noted above, the Veteran is in receipt of a TDIU from April 10, 2001. The Veteran argues that the effective date for the award of a TDIU should be as early as October 9, 1996, which is the date when the Veteran claimed service connection for his low back condition. The Board notes that the Court's grant of the August 2012 Joint Motion explicitly left intact that portion of the Board's decision that defined the relevant period under consideration as October 9, 1996 to April 9, 2001. Accordingly, the Board will not repeat the discussion from its September 2011 decision concerning effective dates for claims for a TDIU, and it will address only the question of whether a TDIU may be awarded to the Veteran at any point during this time. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). If, as in the instant case, there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). For the purpose of determining whether one 40 percent disability rating exists, the Board notes that disabilities resulting from a common etiology or a single accident may be considered to be one disability. See id. Turning to the facts in the instant case, from October 9, 1996 to April 9, 2001, the Veteran's combined disability rating was 80 percent according to Table 1 of 38 C.F.R. § 4.25. During this period, the Veteran was in receipt of a 60 percent rating for a low back condition, a 30 percent rating for headaches, a 10 percent rating for tinnitus, and noncompensable evaluations for laceration scars to the face and left lower leg. Therefore, the Veteran's service-connected disabilities meet the above-described percentage rating standards for a TDIU. See 38 C.F.R. § 4.16(a) (2012). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the period of time from October 9, 1996 to April 9, 2001. Throughout its analysis, the Board is mindful of the Court's guidance from the August 2012 Joint Motion. The Joint Motion identified two primary bases for remand. The Joint Motion first noted that the Board's September 2011 decision largely focused on whether the Veteran was "unable to work," rather than focusing on whether the Veteran was unable to secure or follow a substantially gainful occupation. The Joint Motion emphasized that marginal employment is not considered substantially gainful employment. The Joint Motion also indicated that the Board did not adequately consider the Veteran's educational training and work history in rendering its opinion. Accordingly, the Board proceeds with its analysis mindful of the guidance provided in the Joint Motion. Turning to the facts in the instant case, in the Veteran's 1998 application for SSA benefits, the Veteran stated that he became too disabled to work on January 28, 1988. In a SSA Disability Report, the Veteran indicated that he last worked on January 28, 1988. When asked "how [his] condition now keeps [him] from working", the Veteran stated that his lung injury made him short-winded, and his back "would not let [him] walk much." He said he had heart pain all the time, and the Veteran stated that his doctor told him that if he wanted to "live a little longer, forget about work." The Veteran stated that his disabling conditions were: two heart attacks, back injury, lung injury, and difficulty hearing due to ringing in his ears. The Veteran indicated in other application materials provided to the SSA that his tasks previously performed for the lumber company included working in the warehouse, driving a truck, and performing screen and window repair. The Veteran stated that his back, arms, and hands hurt, and his ears rang constantly. Also included among the SSA records is a May 1988 letter from a private physician, Dr. G.C.M., who indicated that the Veteran completed his education through the 12th grade. The Veteran reported that he had previously worked for a lumber company for 31 years, as a truck driver, in the warehouse, and in the screen and window repair area. Dr. G.C.M. indicated that the Veteran had a 20 percent impairment to his body due to his lung injury and a 20 percent impairment to his body due to his upper respiratory injury. The Veteran thus had a 40 percent combined impairment due to these injuries. Also in May 1988, Dr. G.C.M. stated that the Veteran's low back disorder accounted for a 16 percent impairment. Also in May 1988, Dr. G.C.M. indicated that the Veteran's cardiac problems caused him a 50 percent impairment. The Veteran had 18.5 percent impairment due to binaural hearing problems. In a July 1988 letter from Dr. G.L.B. to a private attorney, Dr. G.L.B. stated that the Veteran informed him that in January 1988, the Veteran was "laid off because of business decline." The Veteran further stated that he had not seen any physicians because of his back. A December 1988 SSA Disability Determination and Transmittal form indicates that the Veteran's disability began on January 28, 1988, and noted a "primary" diagnosis of ischemic heart disease and a "secondary" diagnosis of status post lumbar strain. A December 1988 VA rating decision awarded the Veteran a non-service-connected pension. The December 1988 rating decision noted that the Veteran had a high school education and had taken some "courses of business college." The rating decision noted that the Veteran had last worked in January 1988 as a general laborer in a lumber company. The Veteran's non-service-connected pension was granted based not only on the Veteran's above-described back disability, but also on non-service-connected heart disease and chronic obstructive pulmonary disease (COPD). A September 1996 hospital registration record indicates that the Veteran was not employed at that time. In an April 1997 VA examination of the Veteran's tinnitus, the examiner noted that the Veteran had worked as a manager in a lumber yard. In December 2000, the Veteran underwent a fee-based examination of his low back disability. The Veteran reported that flare-ups of his condition rendered him unable to perform any of his activities of daily living. The Veteran dressed himself, showered, cooked, walked with assistance, climbed stairs, and drove a car. The Veteran could not shop, take out the trash, push a lawnmower, or garden. The Veteran reported that he had worked for a lumber company for 30 years, and he was presently retired and unemployed. The Veteran indicated that he was last employed on January 1, 1998, and he quit because of the pain in his back. The Board treats the year "1998" as a typographical error because the evidence of record otherwise indicates that the Veteran has not worked since January 1988. While the examiner commented that the Veteran's back problems caused "severe" functional limitation, he did not opine as to whether the Veteran's service-connected disability rendered him unable to secure or follow a substantially gainful occupation. A November 1997 private medical record indicates that the Veteran underwent a physical examination at that time, and the diagnoses of the Veteran were: (1) high blood pressure under good control (which, the Board notes, is not service-connected), (2) type II diabetes under good control (which, the Board notes, is not service-connected), (3) post-concussion headache syndrome, (4) decreased hearing, and (5) atherosclerotic coronary vascular disease (which, the Board notes, is not service-connected). The Veteran's low back condition was not among the complaints for which the Veteran sought treatment at that time. In the Veteran's April 2002 Application for Compensation Based on Unemployability, the Veteran indicated that he last worked full time on January 1, 1988 for a lumber company. The Veteran indicated that he had lost 10 weeks from work due to illness, specifically due to a "heart attack." In an October 2002 Application for Compensation Based on Unemployability, the Veteran indicated that he had lost 10 weeks due to illness, and he provided no additional information. The Veteran stated that he had completed one or two years of high school. Turning to an application of the relevant laws and regulations to the facts in the instant case, the Board finds that the weight of the evidence does not establish that the Veteran's service-connected disabilities alone-that is, a low back condition, headaches, tinnitus, and scars-caused the Veteran to be unable to secure or follow a substantially gainful occupation between October 9, 1996, and April 9, 2001. The Board observes that the Veteran's own assertions are the only evidence of record indicating that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. For example, at his December 2000 VA examination, the Veteran stated that he quit his job in January 1988 because of his back problems. This assertion is contradicted, however, by the above-discussed July 1988 letter that indicates that the Veteran stated at that time that he was "laid off because of business decline." The Board affords the statement the Veteran made in 1988 with significantly more probative value than the later statements he has made during the course of the appeal. The Veteran made his 1988 statement within six months of his separation from work in January 1988. Furthermore, the Veteran's contemporaneous 1988 application for SSA disability benefits primarily focused on the Veteran's heart and lung disability, rather than his back disability. In May 1988, a physician opined that the Veteran's low back disorder accounted for only a "16%" impairment, and his hearing problems (which, the Board notes, includes non-service-connected hearing loss) accounted for an "18.5%" impairment. These relatively low levels of impairment caused by the Veteran's service-connected disabilities, especially compared to the much greater impairment associated with the Veteran's non-service-connected cardiac and respiratory difficulties, are inconsistent with the Veteran's current assertions that he quit his work due solely to back pain. Accordingly, the Board finds the Veteran's contemporaneous statement that he was laid off to be of greater probative weight than the Veteran's later statement indicating that he quit his job because of back pain. The Board acknowledges the finding of the December 2000 examiner that the Veteran's low back disability caused "severe" functional limitation. At the time of this examination, the Veteran's low back disability was evaluated as 60 percent disabling. Such evaluation contemplated a pronounced lumbar spine disability, which fully addresses the physician's conclusion that the Veteran's low back disability caused severe functional impairment. The examiner did not find that the Veteran was unable to obtain and sustain gainful employment due to his service-connected disabilities. Instead, the Veteran retained the ability to drive, walk (with assistance), and climb stairs. The Board notes that while the evidence of record is not wholly consistent with regard to the Veteran's education, it generally suggests that the Veteran has completed at least a high school education. Furthermore, the Board observes that the Veteran has demonstrated work experience not only as a general laborer, but also as a warehouse manager, a repairman, and a truck driver with the same company for over 30 years. The December 2000 examiner explicitly found that the Veteran retained the ability to drive; the Veteran was accordingly not precluded from engaging in substantially gainful employment in the form of truck driving, an occupation with which the Veteran had experience. Furthermore, the Board observes that the Veteran indicated at his December 2000 examination that numbness of his legs was the cause of the functional impairment that he described (which included problems vacuuming, shopping, taking out the trash, pushing a lawnmower, and gardening). While this leg numbness could pose obvious difficulties with a position as a laborer that presumably involves walking and carrying weights, the evidence of record does not suggest that such numbness would interfere with the Veteran's ability to perform repairs at a substantially gainful level of employment. In sum, the Board has searched for probative evidence suggesting that the Veteran's service-connected disabilities alone precluded him from engaging in or maintaining substantially gainful employment between October 9, 1996, and April 9, 2001, and it finds that the evidence against such a conclusion far outweighs the evidence in favor of such a conclusion. For the above reasons, the Board concludes that the preponderance of the evidence is against a finding that the Veteran was unable to obtain and sustain gainful employment as a result of service-connected disabilities between October 9, 1996, and April 9, 2001. The Veteran's statements are the only evidence of unemployability (solely due to service-connected disabilities) before April 10, 2001. As stated above, the Board has concluded that the Veteran's credibility has been damaged and accords no probative value to the Veteran's statements. Therefore, entitlement to an effective date earlier than April 10, 2001, for the award of a total rating for compensation based upon individual unemployability is denied. ORDER An effective date prior to April 10, 2001, for the award of a TDIU is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs