Citation Nr: 1307883 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 05-28 586 ) 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 evaluation, based on individual unemployability, due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran requested a Regional Office hearing when he submitted a VA Form 9 in January 2008. The Veteran was scheduled for a hearing at the RO in February 2008; however, in a January 2008 statement, the Veteran withdrew his request for a hearing. The Board remanded the Veteran's claim for additional development in January 2009, July 2010, June 2011 and June 2012. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that is considered by the Board in this 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). FINDINGS OF FACT 1. The competent medical evidence of record establishes that the Veteran's service-connected disabilities do not preclude sedentary employment. 2. The Veteran's service-connected disabilities do not preclude him from obtaining or maintaining all types of substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in October 2006. This notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The letter also provided notice of what evidence was necessary to substantiate a TDIU claim. Additional letters, including a May 2009 letter and an August 2010 letter, were sent to the Veteran throughout the appeal period which either reiterated the information provided in the original October 2006 letter, or provided more specific notice as to the type of evidence necessary to substantiate the TDIU claim. These additional letters also notified the Veteran of the development that the RO had taken on the claim up to that point. All combined, these letters provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate the claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his 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 any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and as to whether the Veteran's service-connected disabilities render him unemployable based on his education and work history. In addition, the Veteran was afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Principles It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2012). "Substantially gainful employment" is that employment, "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 is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, 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 veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned if 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 that 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. §4.16(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background In a December 2009 opinion, a VA examiner noted that the Veteran reported that he stopped working in 2001. He also indicated that he began receiving Social Security benefits due to his back disability in 2003 or 2004. The examiner opined that the Veteran's service-connected diabetes with residuals was not the sole cause of his functional impairment as his nonservice-connected back disability impaired him most in his ability to obtain gainful employment. In the June 2011 remand, the Board directed the RO to schedule the Veteran for a VA examination to determine whether any of the Veteran's service-connected disabilities (including prostatitis, type II diabetes mellitus, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity peripheral neuropathy) rendered him unable to secure or follow substantially gainful employment. The examiner was also requested to address the impact of the Veteran's nonservice-connected disabilities, including a back disability, on the Veteran's employability. The September 2011 VA examiner indicated that the Veteran will not be able to work in his usual job as a construction worker or plumber because those types of jobs require heavy work as a result of his lumbar discogenic disease, spondylosis, and myositis and diabetes mellitus with bilateral upper and lower extremity peripheral neuropathy disabilities. In addition, with the Veteran's educational background and capacity, the Veteran is not trainable for other types of jobs. He indicated that the Veteran's above mentioned medical conditions will restrict him in pushing, pulling, lifting or carrying objects more than ten pounds repeatedly during an eight hour work day. The examiner indicated that the Veteran cannot be sitting or standing for more than two hours straight. Finally, the examiner also concluded that the condition of prostatitis did not render the Veteran unemployable. The September 2011 VA examiner essentially determined that the Veteran was unemployable, but he failed to provide an opinion as to whether the Veteran's service-connected disabilities alone, without consideration of the nonservice-connected disabilities (and in particular, the back disability) precluded the Veteran from obtaining or maintaining any gainful employment. As a result, the Board again remanded this issue in a June 2012 decision with the express purpose of obtaining a medical opinion which specifically indicated whether, without taking into account the Veteran's age, the Veteran is precluded from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) solely due to his service-connected disabilities (i.e., prostatitis, type II diabetes mellitus, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity peripheral neuropathy) either individually or in conjunction with one another, but without consideration of his non-service connected back disability. In a July 2012 VA examination report, the examiner opined that as a result of his service-connected diabetes mellitus with bilateral upper and lower extremity peripheral neuropathy the Veteran will not be able to work in his usual job as a construction worker or plumber as this type of job required heavy work. He was able to sustain and maintain a sedentary type job with restriction on pushing pulling, lifting and carrying objects more than 10 pounds repeatedly during an 8 hour work day. He could not sit or stand for more than 2 hours straight and he required medication nearby and breaks for adequate snacks and diet. Regarding his service-connected prostatitis and benign prostatic hyperplasia, these disabilities did not render him unemployable and he was able to obtain, perform and secure a regular duty job. Analysis Service connection is in effect for prostatitis, rated as 20 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; right and left upper extremity peripheral neuropathy with each extremity rated as 10 percent disabling; right and left lower extremity peripheral neuropathy, with each extremity rated as 20 percent disabling; and, erectile dysfunction, rated as noncompensable. The combined rating for the service-connected disabilities has been 70 percent since September 2006. Therefore, the Veteran meets the minimum percentage requirements the assignment of a TDIU. To establish entitlement to a TDIU, however, it must also be shown that, due to the service-connected disabilities alone, the Veteran is unable to obtain or maintain any form of substantially gainful employment consistent with the Veteran's education and industrial background. The preponderance of the evidence is against such a finding in this case. Here, the evidence shows that the Veteran is unable to obtain or maintain substantially gainful employment as determined by the September 2011 VA examiner. However, the reason the Veteran is precluded from all forms of employment is a combination of service-connected disabilities and his nonservice-connected back disability; and, moreover, the VA examiner in December 2009 specifically indicated that the Veteran's nonservice-connected back disability impaired him most in his ability to work. Moreover, the Veteran's award of Social Security Disability benefits is predicated on the Veteran's primary disability which affects his back. Per the July 2012 remand instructions the July 2012 VA examiner very clearly opined that the Veteran's service-connected diabetes mellitus with bilateral upper and lower extremity peripheral neuropathy did not preclude the Veteran from engaging in sedentary employment positions. Additionally, the examiner opined that the Veteran's service-connected prostatitis and benign prostatic hyperplasia disabilities did not render him unemployable and he was able to obtain, perform and secure a regular duty job. The record demonstrates that the Veteran was formerly employed as a construction worker and plumber. It therefore appears that his prior work experience involved mostly manual labor, and not sedentary work. That alone, however, does not necessarily mean that the Veteran is not able to secure or follow a substantially gainful sedentary occupation; and, moreover, the main reason for his inability to work in his field of manual labor is the disability caused by the nonservice-connected back disorders. As noted above, the evidence clearly reveals that the Veteran has a significant back disability that has been found to inhibit his ability to work in manual labor jobs. The Veteran is in receipt of Social Security Administration disability benefits for his back disability but has previously been denied service connection for his back disability. While the Board is sympathetic for the restrictions that encompass his nonservice-connected back disability, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. Here, because the evidence clearly demonstrates that the Veteran's service-connected disabilities do not preclude all forms of employment, a TDIU is not warranted. In essence, the Veteran is not able to work at this time, but the evidence demonstrates that it is a combination of his non-service connected back disability and service-connected disabilities that preclude him from all forms of employment. The July 2012 VA examiner assessed the effect of the service-connected disabilities on employability and determined that he would be able to engage in most sedentary jobs. This opinion is entitled to great probative weight as it was based on a review of the history and a physical examination. Because the prior opinion of September 2011 did not distinguish between service-connected and nonservice-connected disabilities, that opinion has no probative value with respect to this TDIU claim. The statements of the Veteran as to his employability as a result of his service connected disabilities have been considered and they are found to be competent, credible and probative as to the symptoms experienced and observed. However, they are outweighed by the VA examiner's opinion which considered the Veteran's entire disability picture and determined that when considering only the Veteran's service-connected disabilities, he was able to obtain or retain substantially gainful sedentary employment. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Entitlement to a TDIU is denied. ____________________________________________ L. B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs