Citation Nr: 1308052 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-28 009A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to a TDIU. A timely appeal was perfected from that decision. An informal conference on this matter was held before a Decision Review Officer on July 8, 2008. The conference report has been associated with the file. In March 2011, the Board remanded the appeal for additional development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran is service connected for diabetes mellitus, Type II, peripheral neuropathy for all extremities, hypertension, residuals of a left hand laceration, cataracts and diabetic retinopathy, and erectile dysfunction. His overall combined rating is 60 percent. 2. It is not shown that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in September 2005 that provided information as to what evidence was required to substantiate the TDIU claim and of the division of responsibilities between VA and a claimant in developing an appeal. The duty to notify has been met. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) disability records have been obtained. He has submitted several written statements in support of his claim. In April 2011, he was afforded an adequate VA examination in connection with his claim. The Board notes that the Veteran's representative has suggested that the VA examination is inadequate as the examiner did not consider service connected disabilities of diabetic retinopathy and cataracts in his opinion. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Review of the examination report reflects a detailed clinical examination, including a vision assessment. Clinical examination did not show significant vision problems and is consistent with prior clinical records and the currently assigned non compensable disability rating. (See also Dr. J.S. December 2006 medical opinion that vision disorder would have no impact on employment capabilities). The failure by the examiner to list the service connected vision disorder in his opinion is inconsequential. Id. In compliance with the Board's March 2011 remand, VA obtained updated VA treatment records and furnished a comprehensive April 2011 VA examination with accompanying opinion on the Veteran's employability. A supplemental statement of the case was issued in March 2012. The record is in substantial compliance with the March 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Analysis Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall 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. 38 C.F.R. § 4.16(a). Throughout the pendency of this appeal, the Veteran's total combined rating for service-connected disabilities (diabetes mellitus, Type II, peripheral neuropathy for all extremities, hypertension, residuals of a left hand laceration, cataracts and diabetic retinopathy, and erectile dysfunction) has been no more than 60 percent. See 38 C.F.R. §§ 4.25, 4.26. In determining the overall combined rating, disabilities arising from a common etiology, such as diabetes, will count as a single disability for TDIU purposes. 38 C.F.R. § 4.16(a). The Veteran's compensable disabilities are all related to the common etiology of diabetes, and they are considered a single disability for purposes of the combine rating. Thus, he meets the schedular TDIU criteria of a single disability rated as 60 percent disabling. Id.; 38 C.F.R. §§ 4.25, 4.26. In determining whether the Veteran is unemployable, consideration may be given to his education, training, and special work experience, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 1.419; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record shows that the Veteran has not had full time employment since the late 1990s. His prior occupation was as a floor installation laborer, and he retired due to low back pain. (April 2011 VA examination report). Beginning April 1, 2005, SSA found the Veteran to be disabled due to diabetic neuropathy and hypertension. Although pertinent, the SSA determination by itself is not sufficient to warrant an outright grant. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). The Veteran has asserted that his service connected disabilities render him incapable of gainful employment. He is competent to report his ongoing symptoms which are capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, he is not a medical professional. The record does not document any symptoms from a service connected disability, such as blindness or complete paralysis, that would permit a patently obvious conclusion as to his employment capabilities. Here, the question of whether his service connected disabilities preclude gainful employment is a complex medical question beyond the capabilities of lay observation. Competent medical evidence is necessary to show unemployability. 38 C.F.R. § 3.159(a). To the extent the Veteran is competent to comment on the effect his service-connected disability has on his ability to work, the Board does not find his assessment to be frank and unbiased. He is seeking benefits based on his inability to work and naturally believes to be entitled to such. However, the Board finds the objective assessments by medical providers to be more accurate assessments of his industrial capacity. The competent evidence includes a February 2007 SSA determination with an examination report by Dr. J.S. and the April 2011 VA medical opinion. In evaluating medical reports, the Board must analyze their credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior medical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 336 (1994). The probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Monzingo, 26 Vet. App. at 106. The SSA determination facially supports the claim. However, the underlying SSA medical examination by Dr. J.S. is more equivocal. He conducted a clinical examination and review of the Veteran's medical history. Pertinent assessments included diabetes mellitus, Type II with mild neuropathy of all extremities and early retinopathy and hypertension without clinical evidence of end organ damage. Although he believed the Veteran had difficulty manually working with objects, he found gross functional use of the hands to be intact. He found that lower peripheral neuropathy would limit his ability to perform physical tasks. He clearly stated that the vision problems would not pose any work restrictions. He placed lifting restrictions due to non-service connected low back pain. He opined that "[the Veteran] appears capable of working from a seated position, operating hand/foot controls, driving, etc for 8 hours in a single workday." Dr. J.S.'s opinion is based upon review of the pertinent medical history and clinical examination. Stefl, 21 Vet. App. at 123. His conclusions are well articulated and consistent with the additional evidence of record. (See VA treatment records from November 2005 and August 2006 showing that the Veteran engages in daily walking exercises over a mile). The Board considers Dr. J.S.'s December 2006 examination report to be suggestive that the Veteran is capable of less physically demanding employment. See Masors, 2 Vet. App. 181. VA treatment records document ongoing treatment for liver cancer, chronic low back pain, non-insulin dependent diabetes mellitus Type II, hyperlipidemia, stable hypertension and gastroesophageal reflux disorder (GERD), hearing loss and B12 Vitamin deficiency. (May 2012 VA primary care treatment records). The Veteran has visited the VA podiatry clinic with a chief complaint about "burning" sensations in his feet related to neuropathy. (October 2009, April 2010 VA podiatry clinic records). However, review of the ongoing VA treatment records does not show that any examiner has provided an explicit opinion on his employment capabilities or has suggested that any service connected disability would otherwise preclude gainful employment. The April 2011 VA examination report reflects that the Veteran underwent an extensive clinical examination. He exhibited normal reflexes, full muscle strength, and normal sensation of the upper extremities. However, decreased sensation was found for the lower extremities. The examiner noted the service connected disabilities of sciatic and median nerve impairment, erectile dysfunction, diabetes mellitus Type II, left hand scar, and hypertension and listed their occupational effects. He opined that the Veteran was capable of less physically demanding employment. He cited ambulation difficulties from sciatica as impairment for physical tasks. He also acknowledged the Veteran may have difficulty with his hands due to median nerve paralysis. He believed the Veteran's ongoing diabetes and hypertension had a minimal effect on his employment capabilities. The April 2011 VA examiner's opinion is based upon review of the pertinent medical history and clinical examination. Stefl, 21 Vet. App. at 123. His conclusions are consistent with the additional evidence of record. The Board considers the April 2011 VA examination report to be probative and weigh against the claim. Id. In summary, the evidence does not suggest that the Veteran's service connected disabilities have rendered him unemployable. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs