Citation Nr: 1308958	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO. 09-26 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

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).

The Veteran served on active duty from January 1948 to March 1948 and from November 1950 to January 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to a TDIU.

This matter was previously remanded by the Board in October 2011 and October 2012 for additional evidentiary development.

A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. 

Because the current appeal was processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1. Service connection is in effect for the Veteran's conversion reaction with headaches/ dysthymic disorder (30 percent); sleep apnea associated with dysthymic disorder (30 percent); lumbosacral sprain and degenerative disc disease (20 percent); right ankle sprain (10 percent); left ankle sprain (10 percent); tinnitus (10 percent); and left ear hearing loss (0 percent). His combined rating has been 70 percent since November 2003.

2. With resolution of the doubt in the Veteran's favor, the Veteran is unable to secure or maintain substantially gainful employment by reason of his service-connected disabilities. 


CONCLUSION OF LAW

The criteria for a TDIU are approximated. 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

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed.




TDIU

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 for the average person to obtain and maintain a substantially gainful occupation. 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 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." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. However, disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a).

As noted, service connection is in effect for conversion reaction with headaches, dysthymic disorder (30 percent); sleep apnea associated with dysthymic disorder (30 percent); lumbosacral sprain and degenerative disc disease (20 percent); right ankle sprain (10 percent); left ankle sprain (10 percent); tinnitus (10 percent); and left ear hearing loss (0 percent). His combined rating has been 70 percent since November 2003. Because his sleep apnea is secondary to his dysthymic disorder, they have a common etiology and are considered a single disability for meeting the minimum rating requirements. As a result, the schedular criteria for a TDIU have been met throughout the appeal period. See 38 C.F.R. § 4.16(a).

Remaining for resolution is the question of whether there is probative evidence of his unemployability on account of his service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU).

As the U.S. Court of Appeals for Veterans Claims (Court) explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

The resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. 

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." 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." In this context, the Court noted the following standard announced by the U.S. Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), which stated that 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 at 358. 

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.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

In his January 2007 claim, the Veteran reported that he had not worked on a full-time basis since July 1975, and had become too disabled to work as of 1985. He stated that his previous employment was with the New York City Department of Sanitation. He collected refuse and was part of the Department of Sanitation police force. He completed some high-school level education and did not report any additional education or training. Notably, his Form DD-214 listed his main civilian occupation as "ballplayer."

The Veteran underwent several VA examinations to determine the impact of his service-connected disabilities on his employability, and additional findings were reported in his VA outpatient treatment records. 

Examinations from February 2007 indicated that there was no functional impairment from the Veteran's headaches or sleep apnea, that the Veteran's mental disorders did not prevent employment, and that the Veteran was physically capable of sedentary employment. However, a March 2007 orthopedic examination stated that the Veteran's back and bilateral ankle conditions limited how much he could walk, sit, or stand.

Treatment records dated September 2007 noted that the Veteran was active in his community and attempted to walk several blocks each day, and an August 2008 neurological examination found that the Veteran had moderately severe headaches from time to time that did not interfere with his daily activities. However, an October 2008 examination observed that the Veteran experienced extreme pain with walking or sitting. The examiner stated that the Veteran's pain and physical limitations prevented him from engaging in a variety of activities, and resulted in an inability to maintain a pace of activity with his fiancée, who wanted to engage in more non-sedentary activities. However, his psychiatric symptoms would not prevent employment.

VA treatment records dated March 2009 show the Veteran complained of limited ambulation distance due to back pain and shortness of breath.

VA examinations in December 2011 stated that the Veteran's hearing loss and tinnitus did not impact physical or sedentary employment, and that his mental disabilities did not cause occupational impairment. However, an orthopedic examination indicated that his spine disability limited his ability to perform physical labor involving certain activities, and that he could not perform sedentary work for extended periods of time due to back pain. His bilateral ankle disability would not impair sedentary employment. An additional examination noted that the Veteran's headache condition impacted his ability to work, which was based on a history of such impact provided by the Veteran.

Finally, a November 2012 addendum was obtained from the examiner who conducted a December 2011 general VA examination but did not provide an opinion. He reviewed the claims file, and noted the April 2011 records showing the Veteran had been exercising. Subsequent records did not reveal any change in the Veteran's complaints or distress on examination, and the Veteran was not started on any new pain medication. Based on this evidence, the examiner concluded that the Veteran was at least attempting to exercise and would be capable of sedentary employment. However, he concurred with prior findings that the Veteran's conditions made him less able to perform and maintain physical employment.

Resolution of the appeal turns on the probative weight of this evidence, with the Veteran prevailing if the evidence as a whole either favors the claim or is about equally balanced for and against the claim, i.e., in relative equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board may appropriately favor the opinion of one competent medical authority over another, provided that it offers an adequate reasons and bases for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). See also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). A physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000). While the Board may not reject a medical opinion based on its own unsubstantiated medical conclusions, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 

In evaluating the probative value of competent medical evidence, the Court has stated that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . [and that] the credibility and weight to be attached to these opinions [are] within the province of the adjudicator." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

Here, the medical opinions from February 2007, October 2008 and December 2011 uniformly establish that the Veteran's hearing loss, tinnitus, sleep apnea, and psychiatric disabilities have no significant impact individually on his ability to engage in either physical or sedentary forms of employment. 

The March 2007 examination reflects impairment associated with the Veteran's back and bilateral ankle conditions, and the October 2008 examiner noted that the Veteran was unable to engage in non-sedentary activities with his fiancée. The December 2011 specifically noted that his spine disability limited his ability to perform physical labor involving certain activities, and that he could not perform sedentary work for extended periods of time. The November 2012 opinion voiced agreement that the Veteran was less able to engage in physical forms of employment. However, that opinion also stated that the Veteran was capable of sedentary employment, based on records showing attempts to exercise.

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

The evidence demonstrates that the Veteran is generally not able to perform or maintain physical employment, but that there are conflicting opinions as to whether he can engage in sedentary employment. However, as noted above, consideration may be given to the Veteran's level of education, special training, and previous work experience in making a determination for a TDIU. In this case, the Veteran's prior employment consists of physically oriented occupations such as "ballplayer," garbage collector, and sanitation police officer. He completed some high school level education, and did not report any additional training. Therefore, even assuming that the Veteran is currently capable of sedentary employment, it does not appear that his prior occupational and educational history is consistent with such work. Therefore, when resolving all doubts in the Veteran's favor, the Board finds that he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities.


ORDER

A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs