Citation Nr: 1308113 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 94-12 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) on an extraschedular basis beginning on March 10, 2003. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1973 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which denied the Veteran's claim for an increased rating for a left knee condition. The Board remanded the instant claim for an increased rating in April 1996, February 2001, January 2004, August 2005, June 2009, June 2010, and June 2012. A July 1998 supplemental statement of the case (SSOC) partially granted the Veteran's claim for an increased rating and assigned a 20 percent rating for his left knee disability. The instant left knee disability was also recharacterized to include left knee trauma with instability. A March 2009 rating decision granted a separate rating for the Veteran's left knee instability and assigned a 10 percent rating, effective February 11, 2009. In June 2012, the Board denied an increased rating in excess of 20 percent for left knee degenerative joint disease, denied the TDIU claim on a schedular basis, and denied the TDIU claim on an extraschedular basis prior to March 10, 2003. However, the Board determined, concerning the claim of entitlement to TDIU beginning March 10, 2003, that a referral for an extraschedular evaluation was necessary pursuant to 38 C.F.R. § 4.16(b). Therefore, the claim was remanded for consideration of an extraschedular evaluation by the Director of Compensation and Pension Service. The requested development has been completed and the claim is once again before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are as follows: left knee degenerative joint disease, rated as 20 percent disabling; and left knee instability, rated as 10 percent disabling. His combined service-connected disability rating is 30 percent. 2. Based on a preponderance of the evidence of record, the Veteran's service-connected disabilities alone are not shown to preclude him from securing and following substantially gainful employment at any time since March 10, 2003. CONCLUSION OF LAW The criteria are not met for a TDIU on an extraschedular basis from March 10, 2003. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § § 3.340, 3.341, 4.15, 4.16(b), 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Under applicable law, 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. 2010); 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 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters dated in June 2001, March 2004, July 2004, August 2005, August 2007, and May 2011, provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter of August 2007 also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claims be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter from May 2011 also informed the Veteran of the evidence necessary to establish a total disability rating based on individual unemployability. VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. Not all of the Veteran's duty-to-assist letters were provided before the adjudication of his claim. However, after he was provided the letters he was given a full opportunity to submit evidence, and his claims were subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided this notice, the Veteran communicated on multiple occasions with VA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA has obtained service medical records, assisted the Veteran in obtaining post-service treatment records, afforded the Veteran physical examinations, obtained Social Security Administration records, and received numerous statements from the Veteran and other lay witnesses. All known and available records relevant to the issue 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 Criteria, Factual Background and Analysis The Veteran contends that he is entitled to a TDIU since his service-connected disabilities render him unemployable. A TDIU requires impairment so severe that it is impossible to obtain and maintain substantially gainful employment. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected 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. § 4.16(a). The Veteran's service-connected disabilities are: left knee degenerative joint disease, rated at 20 percent disabling; and left knee instability, rated at 10 percent disabling. These disabilities all affect a single body system, i.e., his orthopedic system, or stem from common etiology or a single accident, so for all intents and purposes may be considered as one collective disability (rather than two separate disabilities) for the purpose of determining whether he satisfies the threshold minimum rating requirements of § 4.16(a) for consideration of a TDIU. Since, however, even allowing for this exception, there is not at least a 60 percent rating, instead, just a lesser 30 percent combined rating (see 38 C.F.R. § 4.25), the only possible means of obtaining a TDIU is on the alternative extraschedular basis under § 4.16(b). 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. Therefore, rating boards are to submit to the Director of Compensation and Pension Service, for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board is to include in its submission a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and factors having a bearing on the issue. 38 C.F.R. § 4.16(b). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that 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." See, too, Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . .." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age, or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. As the Board, itself, cannot assign an extraschedular rating in the first instance pursuant to 38 C.F.R. § 4.16(b), it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension Service for an extraschedular evaluation when the issue is either raised by the claimant or reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted does the Board then have jurisdiction to decide the extraschedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of Compensation and Pension Service for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). Here, the Board remanded this claim to the Director of Compensation and Pension Service for this determination. Therefore, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extraschedular evaluation under 38 C.F.R. § 4.16(b) (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. §§ 3.102, 4.3. The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran asserts that his service-connected disabilities prevent him from working, and that these disabilities preclude him from engaging in any other type of substantially gainful employment. On his March 2009 TDIU application (VA Form 21-8940), he indicated that he has not worked since March 2003, and indicated his last position was a Senior Technician at a chemical plant. On the application, the Veteran submitted that he had worked at this chemical plant since 1976 (for 27 years). The Veteran indicated that he had four years of college education, and that while employed as a Manager for a retail food chain, he participated in a Manager Training Program. The Veteran completed a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192). However, instead of having his employer complete the relevant sections, the Veteran completed the entire form and signed it "There are no supervisor in the unit and people that worked with me are gone." The Veteran reports that he became unemployed in March 2003. Private treatment records of Dr. M. B. from this time show that the Veteran was being treated for left knee pain. A March 10, 2003 treatment record noted that the Veteran had changed jobs, and was doing a lot of climbing which caused him to start having pain. In a March 26, 2003 treatment record Dr. M. B. informed the Veteran he could do sedentary work only. In April 2003, it was recommended the Veteran try biking for strength. It was also recommended the Veteran perform sedentary to light duty until May 2003. The Veteran was encouraged to bike and gradually increase activity in May 2003. Also in May 2003, Dr. M. B. informed the Veteran he could continue all activities as tolerated. In September 2003, the Veteran was encouraged to continue a home exercise program. In April 2004, Dr. M. B. provided an opinion as to the Veteran's condition which stated that the Veteran has severe modifications in his knee as far as him being able to return back to the work market. In April 2004, the Veteran also provided a statement in which he indicates that he stopped working because he needed to take pain pills for his knee. The Veteran filed for Social Security Administration (SSA) Disability Benefits. In October 2004, SSA found the Veteran to be disabled due to a combination of his chronic heart disease and arthritis. SSA held that the Veteran has the residual functional capacity for no work at an exertional level, and found he cannot perform his past work or any other work on a regular or sustained basis. In 2006, the Veteran returned for treatment with Dr. M. B. A note from May 2006 indicated that while the Veteran continued to struggle with his knee, he was no better, but certainly no worse; and his range of motion was good. In August 2007, a treatment note indicated that the Veteran was instructed to continue with the bicycle. The Veteran was afforded a VA examination in February 2009. The examiner noted that the Veteran was retired from employment for medical reasons, and listed these reasons to include his left knee. The examiner opined that the left knee disabilities significantly effect on the Veteran's usual occupation. The effects included decreased mobility, decreased manual dexterity, problems with lifting and carrying, decreased strength in the lower extremity, and pain. In June 2010, the Veteran underwent a second VA examination, again the VA examiner reported that he was retired from employment for medical reasons, and listed these reasons to include left knee, cardiac, low back, and kidneys. It was noted that the Veteran's left knee significantly effects his usual occupation. The examiner also noted that the Veteran's left knee prevents him from participating in sports, but only moderately effects his ability to complete chores, shopping, exercise, and driving; with no effect on recreation, traveling, feeding, bathing, dressing, toileting, and grooming. The Veteran submitted a second application for TDIU (VA Form 21-8940) in November 2010. Again he indicated he worked as a Senior Technician from 1976 to 2003. The Veteran indicated he had four years of college education, but did not include any additional training. In December 2010, VA received a completed Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran's former employer noted that the Veteran was employed from 1976 until March 10, 2003. The employer noted that the reason for termination of employment was permanent long term disability. In accordance with the Board's June 2012 remand directive, the TDUI claim was referred to the Director of Compensation and Pension Service in August 2012 for consideration of the assignment of an extraschedular TDIU under 38 C.F.R. § 4.16(b). In response dated November 2012, the Director of the Compensation and Pension Service concluded that TDIU was not warranted on an extraschedular basis. The Director concluded that there was no evidence that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected left knee disability beginning on March 10, 2003. The Director specifically indentified that subsequent medical evidence (including the June 2010 VA examination), received following SSA's disability determination, showed signs of improvement and evidence that sedentary employment can be performed. The Director noted that treatment notes from Tulane University Hospital and Clinic (Dr. M. B.) stated that the Veteran received treatment for his left knee condition and reported that he was told he can do sedentary work at this point due to the inability to do prolonged walking or standing for the last eight weeks. Further, the Director noted that progress notes dated April 2003 indicate the physician diagnosed mild left medial osteoarthritis and recommended sedentary to light duty until May 2003. The Director's finding also noted SSA medical records dated October 2, 2004, state the Veteran's cardiac disease resulted in marked limitation of physical activity; that ordinary physical activity causes fatigue, palpitation, dyspnea, or anginial pain. Walking more than one block, climbing one flight of stairs or usual activities of daily living produces symptoms. The Director noted that Veteran's employment ended on March 9, 2003, and that his former employer stated termination of employment was due to permanent long-term disability. The Director held that SSA records list the service-connected left knee and non-service connected cardiac disease as the conditions which render the Veteran unemployable. Medical treatment records revealed that an examiner determined the Veteran could perform sedentary work, and subsequent treatment records from this period show improvement in the Veteran's left knee symptomatology. The June 2010 VA examination revealed almost normal range of motion of 0 to 120 degrees flexion and 0 degrees extension. The decision of the Director noted that although no opinion was provided, the examiners in February 2009 and June 2010 stated that the left knee condition has a significant effect on usual occupation. As a result, the Director concluded that the medical evidence shows signs of improvement and that sedentary employment could be performed. The Board has determined that the most probative evidence of record weighs against the Veteran's claim. Hayes v. Brown, 5 Vet. App. 60, 60-70 (1993)(it is the responsibility of the Board to assess the credibility and weight to be given to the evidence). The Board concurs with the findings made by the Director of Compensation and Pension Service who concluded that there was no evidence presented that showed the Veteran is unable to secure and follow any substantially gainful occupation. The Director noted that there was evidence that sedentary employment can be performed, and that there was improvement, particularly in the Veteran's range of motion, since the SSA determination. Finally, it was noted that it was a combination of the Veteran's service-connected left knee disabilities and his nonservice-connected cardiac condition which rendered him unemployable. Therefore, the evidence does not suggest that only the Veteran's service-connected disabilities preclude him from engaging in all types of work related activities. Also, although the two VA examiners noted the left knee disabilities would have "significant effects" on the Veteran's usual occupation, neither opined that the Veteran was unable to work. The Board acknowledges the Veteran's assertions that he has been unable to work since 2003 due to his service-connected disabilities. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As the Veteran's statements are inconsistent with the probative evidence of record, which does not show the Veteran is unemployable solely due to his service-connected disabilities, the Board finds that his assertions of unemployability lack credibility and are without probative value. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Based on the evidence discussed above, the Board finds that the preponderance of the evidence of record does not demonstrate that the Veteran's service-connected disabilities alone preclude him from engaging in substantially gainful employment. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. Thus entitlement to a TDIU rating due on an extraschedular basis is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU beginning on March 10, 2003 based on extraschedular consideration is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs