Citation Nr: 1308360 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-30 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to October 6, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from January 1956 to October 1957. This appeal to the Board of Veterans Appeals (Board) originally arose from an April 2003 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied entitlement to a TDIU. In March 2007, the Veteran and his wife at the RO testified at a Board videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C. By decisions of September 2007 and May 2010, the Board remanded the TDIU issue to the RO for further development of the evidence and for due process development. By rating action of March 2011, the RO granted a TDIU from October 6, 2005; the matter of entitlement to a TDIU for the period prior to October 6, 2005 remains for appellate consideration. In August 2011, the Board remanded this matter for additional development actions. In a September 2012 rating decision, the RO granted service connection for neurogenic bladder and assigned a 60 percent disability rating effective February 10, 2006, granted service connection for memory loss and assigned a 30 percent disability rating effective September 9, 2009, and granted service connection for erectile dysfunction and assigned a noncompensable rating, effective February 10, 2006. The RO issued a September 2012 supplemental statement of the case continuing the denial of a TDIU for the period prior to October 6, 2005. FINDINGS OF FACT 1. Prior to October 6, 2005, the Veteran was gainfully employed in a full time position. 2. The evidence of record does not show that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the period prior to October 6, 2005. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period prior to October 6, 2005 have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in an October 2007 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. 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, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent September 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis 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 (2012). 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). A TDIU 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). As noted above, the issue on appeal is entitlement to a TDIU for the period prior to October 6, 2005. In this regard, the September 2012 rating decision granting service connection for neurogenic bladder, memory loss, and erectile dysfunction assigned ratings effective after October 6, 2005 and therefore, has no effect on the matter of a TDIU for the period prior to October 6, 2005 currently on appeal. The Veteran contends that prior to October 6, 2005, he was unable to maintain substantially gainful employment due to his service-connected disabilities. For the period prior to October 6, 2005, service connection is in effect for degenerative disc disease, rated 50 percent disabling from June 1966; sciatica of the right lower extremity, rated as 20 percent disabling from May 28, 2004; sciatica of the left lower extremity, rated as 20 percent disabling from May 28, 2004; and gastritis, rated as 10 percent disabling from June 25, 1990. The Veteran's combined rating for compensation is 60 percent disabling from June 25, 1990, and 70 percent disabling from May 28, 2004. Thus, the Veteran's disabilities satisfy the criteria of 38 C.F.R. § 4.16(a) (2012) as of May 28, 2004. The remaining question is whether the Veteran's service-connected disabilities render him unemployable. 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 and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 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 non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the regulations do not define "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." 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 also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal 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. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified that "[r]equiring a Veteran to prove that he or she is 100 percent unemployable is different than requiring him or her to prove that he or she cannot maintain substantially gainful employment. The use of the word 'substantially' suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that the Veteran prove 100 percent unemployability leaves no flexibility." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In a VA form 21-4192, the Veteran's prior employer noted that the Veteran last worked eight hours a day as a security officer from March 15, 2004 to October 14, 2005. His last paycheck received was $711.11 on October 26, 2005. A printout of the Veteran's pay history from his employer from January 2005 shows that he grossed $800.00 to $835.00 a week, with some bonuses. An August 2005 VA medical record notes that the Veteran complained of bilateral thigh pain radiating from the low back and that he can only work as a casino security guard if he takes 2 Percocet beforehand, and 'barely' gets by at that. A February 2006 VA examination report reflects that the Veteran's service-connected spine disability had significant effects on the Veteran's occupation and caused increased absenteeism. The Veteran stated that he quit his job about six month ago because he was unable to tolerate standing for the hours required to perform his duties. During the March 2007 Board hearing, the Veteran indicated that he was in extreme pain from his back and he took time off because he was just unable to work, and then he just ended up having to leave his employment. A July 2010 VA examination report reflects that the VA examiner opined that with the Veteran's severe back disease and severe lower extremity sciatica symptoms, bilaterally, it appears very likely that he cannot be substantially or gainfully employed. This is because his symptoms are too severe to allow any minimal standing or walking or bending, as it precludes performing anything even minimally strenuous. He also uses Oxycodone and Methadone for his pain, and these would preclude employment due to the likely interference with impairment caused by side effects, both physically and mentally. In this case, the Veteran was employed and maintained full-time employment as a security office for the period prior to October 6, 2005. The record does not indicate that the Veteran's employment during this time was marginal. Therefore, consideration of a TDIU is not warranted for the period prior to October 6, 2005. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability). In summary, although the extent of the Veteran's service-connected disabilities qualify the Veteran for consideration of TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for the period prior to October 6, 2005, the Veteran is not entitled to TDIU for that period because the evidence does not show that he was unable to secure or follow a substantially gainful occupation prior to October 6, 2005. Therefore, as a preponderance of the evidence is against the Veteran's claim for entitlement to a TDIU for the period prior to October 6, 2005, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) . ORDER Entitlement to a TDIU for the period prior to October 6, 2005 is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs