Citation Nr: 1309506 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 05-04 471 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability by reason of service-connected disability (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1961. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the RO. In an August 2011 decision, the Board denied the Veteran's claim for a rating in excess of 10 percent for the service-connected residuals of an amputation of the second toe of the left foot, and assigned a separate 10 percent rating for the service-connected neuritis of the left foot. The Board also remanded the matter of entitlement to a TDIU rating for further development. The Board remanded the claim to the RO in November 2012 for additional development of the record. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. 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 Veteran is service connected for the residuals of an amputation of the second toe of the left foot (rated as 10 percent disabling), post-traumatic arthritis of the left great toe with deviation and callosity (rated as 10 percent disabling) and neuritis, fifth ray, and status-post resection of adventitious bursae, lateral aspect of the left foot (rated as 10 percent disabling); his combined evaluation of 30 percent does not meet the schedular requirements for a TDIU rating. 2. The separately rated service-connected disabilities of the left foot alone are not shown to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating, to include on an extraschedular basis, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 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, if any, 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). The RO provided a VCAA notice letter to the Veteran in November 2011. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claim was readjudicated in the August 2012 and November 2012 Supplemental Statements of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the Veteran was not provided notice of these elements with respect to the current claim, given that the Board herein denies the claim for a TDIU rating, the failure to provide such notice can amount to no more than harmless error. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The VA outpatient treatment records are associated with the claims folder. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim. In addition, the Veteran underwent examination in April 2004, September 2004, August 2008, April 2010 and September 2010 to determine the nature and severity of his service-connected disabilities. These reports discuss the impact of his service-connected disabilities on his occupational functioning. In November 2011 and November 2012, the Board remanded the claim for additional development-namely, to provide notice and to have the Veteran submit information and evidence regarding the claim for a TDIU rating. Pursuant to these remands, the Veteran was sent letters requesting that he submit information or evidence pertinent to the claim. To date, the Veteran has not responded. In the November 2012 remand, the Board requested that the Veteran submit any evidence or information pertinent to the claims raised by his representative in an October 2012 informal hearing presentation. Neither the Veteran nor his representative has presented any additional information regarding these claims. Hence, the record indicates that the Board's remand instructions have been reasonably accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria and Analysis Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The Veteran is service connected for the residuals of an amputation of the second toe of the left foot, rated at 10 percent; post-traumatic arthritis of the left great toe with deviation and callosity, rated at 10 percent; and neuritis, fifth ray, status-post resection of adventitious bursae, lateral aspect of the left foot, rated at 10 percent. To the extent that his combined evaluation is 30 percent, he does not meet the schedular requirements for assignment of a TDIU rating. 38 C.F.R. § 4.16(a). However, as noted, a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). Hence, consideration of whether the Veteran, in fact, is unemployable is still necessary in this case. The pertinent treatment records reflect that the Veteran has not been employed since approximately 1996. He previously worked with the U.S. Postal Service and retired after 30 years of employment. The VA outpatient treatment records consistently noted that the Veteran retired due to age and/or duration of work. The treatment records also discussed the Veteran's general complaints of left foot pain. On VA examination in April 2004, the Veteran was noted to be a retired mail carrier for the Post Office. On examination, the examiner noted that the Veteran appeared to have no serious residual effects from the surgeries on his left foot. A September 2004 VA examination report reflects that the Veteran reported having left foot problems that limited some of his activities, in that he was unable to mow his lawn or climb ladders. The examiner indicated that there were no other significant limitations in activities. It was noted that the Veteran retired from the postal service after 30 years. On examination, the examiner diagnosed status post second toe amputation on the left secondary to hammertoe. He determined that there were no significant complications. The examiner also commented that the Veteran seemed to be functioning appropriately and was in appropriate shoes. On VA examination in August 2008, the Veteran described having an intermittent burning sensation in the left toes upon ambulation. The Veteran was noted to be retired due to age or duration of work. The examiner noted no effects on usual occupation due to the fact that the Veteran was not employed, and the Veteran's amputation of the second toe of the left foot and neuritis would have only mild effects on activities such as sports, chores and shopping. On VA examination in April 2010, the examiner noted that the Veteran was not employed due to his medical and musculoskeletal disabilities. Based on an examination, the examiner indicated that the Veteran's left foot condition would cause significant general effects on employment, namely pain. However, the same examiner added that the disability would only cause mild to moderate impact on daily activities such as chores and exercise. Significantly, a September 2010 VA examination report reflected that the Veteran was retired due to age and/or duration of work. The examiner determined the Veteran's neuritis of the left foot had no effects on employment. The Board also notes that the VA outpatient treatment records document a variety of nonservice-connected medical complaints and diagnoses, including Parkinson Plus Syndrome, likely progressive supranuclear palsy, a major depressive disorder, osteoarthritis, spinal stenosis, and carpal tunnel syndrome. The examination reports reflect that the Veteran was severely dysarthric and had limited ability to communicate his needs. While the record shows that the Veteran is not employed at the present time and that his service-connected disabilities of the left foot do impair his ability to work to some degree, the service-connected disabilities do not meet the schedular criteria for the assigned of a TDIU rating. Moreover, on review of the entire, the weight of the evidence does not show that the service-connected disabilities alone are so disabling as to preclude the Veteran from securing substantially gainful employment consistent with his educational background and work experience. Rather, the record reflects that the Veteran in this case is retired due to age or duration of work after 30 years of employment and is severely disabled due to a variety of nonservice-connected medical issues, most significantly Parkinson Syndrome and related complications. To the extent that the Veteran has not advanced any specific assertions as to why his service-connected disabilities have exceptionally or unusually disrupted his ability to work, referral of the claim to the Director of Compensation and Pension Service, for extraschedular consideration is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a TDIU rating, to include on an extraschedular basis, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs