Citation Nr: 1311100 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 02-07 046A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to October 23, 2008. REPRESENTATION Appellant represented by: Jeany Mark, Attorney 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 had served on active duty from July 1950 to July 1953. He died in 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied entitlement to a TDIU. The Veteran's claim for TDIU was remanded by the Board in September 2005 for additional development, and later denied in a March 2007 Board decision. That decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court), which remanded the claim back to the Board in August 2008 pursuant to a Joint Motion for Remand (JMR) filed by the parties. The Board then remanded the claim in February 2009 for development consistent with the directives in the JMR. In November 2009, the RO granted a 100 percent evaluation for residuals of a closed head injury, the Veteran's only service-connected disability, effective from October 23, 2008. The Board then denied entitlement to a TDIU prior to October 23, 2008, in a July 2010 decision. Although the Veteran passed away in November 2010, the Board's decision was again appealed to the Court, with the appellant substituted in as the claimant. The claim was remanded pursuant to another JMR in May 2011. The Board then remanded the claim in July 2012 for readjudication by the RO, to include referral to the Director of the Compensation and Pension Service for consideration of an extraschedular TDIU prior to October 23, 2008, pursuant to 38 C.F.R. § 4.16(b). FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran was service-connected for residuals of a closed head injury, rated as 10 percent disabling; he did not meet the schedular criteria for a TDIU. 2. The preponderance of the evidence is against a finding that the Veteran was unable to secure or maintain substantially gainful employment by reason of his service-connected disability prior to October 23, 2008. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 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). Subsequent to the initial adjudication of the Veteran's claim, a letter dated in April 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the April 2009 letter that addressed all notice elements. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only was the Veteran afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in March 2010, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran's VA treatment records, private treatment records, VA authorized examination reports, and lay statements have been associated with the claims file. Pursuant to the Board's July 2012 remand, the claim was also referred by the RO to the Director of Compensation and Pension for consideration of an extraschedular award of TDIU under 38 C.F.R. § 4.16(b). Therefore, the directives of the July 2012 remand have been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran had been afforded VA examinations, and a VHA opinion and addendum addressing the nature of his service-connected condition was also obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination and opinions obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for assessing the impact of the Veteran's service-connected condition on his employability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the appellant with the opportunity to submit evidence and argument in support of her claim. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. TDIU 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. 38 C.F.R. § 4.16(a). During the period on appeal, service connection was in effect for residuals of a closed head injury, rated as 10 percent disabling. As a result, the schedular criteria for a TDIU have not been met throughout the appeal period. Id. In exceptional circumstances, where a 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). Therefore, the appellant's claim will be evaluated to determine whether the Veteran's service-connected disability precluded him from engaging in substantially gainful employment (i.e. work which is more than marginal, that permits the individual to earn a "living wage"). Id.; see also Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the 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. The resolution of this appeal ultimately turns on whether the Veteran's service-connected disability precluded 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...." 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). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran previously submitted several lay statements from family members and acquaintances dated in 1995. Collectively, these statements indicate that the Veteran experienced symptoms such as dizziness and nausea, which made it difficult or impossible for him to work. Notably, an April 1998 letter from Dr. V.P.C. indicated that the Veteran's dizziness was more of a light-headed feeling. A July 2000 opinion from Dr. R.H.P. stated that the Veteran had a documented disability and dizziness resulting from a head injury in service. This injury progressed, and as of 1992, the Veteran was unable to work, drive, or perform many basic independent activities of daily living. An August 2000 opinion from Dr. V.P.C. stated that the Veteran had symptoms of slow movement, stiffness, and tremors due to Parkinson's disease, as well as dizziness from residuals of a head injury. Because of these symptoms, the Veteran was unable to do any type of work at the present time. The appellant submitted an October 2005 statement indicating that the Veteran had difficulty with walking, bathing, dressing, and other daily activities. She had to switch from full-time to part-time work in order to care for him. An October 2005 opinion from Dr. R.H.P. reiterated his previous assertions regarding the Veteran's level of functioning, and again stated that the Veteran was permanently and totally disabled as a result of his service injury. A June 2009 VA examiner found that the Veteran's cognitive impairment precluded him from working. The examiner also stated that both the Veteran's traumatic brain injury (TBI) and Parkinson's "could have resulted in memory impairment" and that there was "no measurable way to determine which condition is responsible for his cognitive decline." A February 2010 statement reflected that the Veteran ran his own business from 1970 to 1995 as a polygraph examiner and security consultant. The statement was completed by the appellant, who also served as vice-president of the business. She indicated that the Veteran stopped working due to illness. A December 2011 Veterans Health Administration (VHA) opinion was obtained as part of the adjudication of another of the Veteran's claims. This opinion stated that the Veteran did not have multi-infarct dementia prior to October 23, 2008, and a subsequent February 2012 addendum stated that there were no neurological manifestations directly attributable to the Veteran's service-connected condition. An January 2013 opinion was obtained from the Director of Compensation and Pension. It included a summary of the relevant evidence, and noted that the July 2000 and October 2005 opinions from the Veteran's private physician offered no supporting evidence or clear rationale to support the conclusion that the Veteran was unemployable, and that an overall review of the evidence in its entirety revealed no evidence that the Veteran was unable to secure and follow any substantially gainful employment prior to October 23, 2008 due to his service-connected TBI. Assignment of a TDIU prior to October 23, 2008 is not warranted in this case. Initially, as previously noted in the July 2012 remand, the June 2009 VA examiner concluded that the Veteran's combined symptoms from his TBI and his Parkinson's disease precluded employment, but was unable to state which symptoms of the Veteran's cognitive decline were related to his service-connected disability. As a result, the Board resolved doubt in the appellant's favor and attributed his cognitive decline to his TBI. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), (holding that when it is not possible to separate the effects of the service-connected condition and the non-service-connected condition, VA regulations at 38 C.F.R. § 3.102, require that reasonable doubt on any issue be resolved in the appellant's favor, and dictate that such signs and symptoms be attributed to the service-connected condition). However, the February 2012 VHA addendum stated that there were no neurological manifestations resulting from the Veteran's TBI, and the August 2000 opinion specifically attributed slow movement, stiffness, and tremors to nonservice-connected Parkinson's disease. Therefore, those manifestations are not associated with the Veteran's service-connected condition. The evidence does not establish that the symptoms attributable to the Veteran's service-connected condition (cognitive decline and dizziness) resulted in an inability to obtain or maintain substantially gainful employment prior to October 23, 2008. The July 2000 and October 2005 opinions of Dr. R.H.P. collectively stated that Veteran was permanently and totally disabled as a result of his service injury. However, no specific basis or rationale was provided to support this conclusion. The failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The August 2000 opinion of Dr. V.P.C., which stated that the Veteran was unable to work, was based in part on neurological symptoms that are not attributable to the Veteran's service-connected condition. Finally, while the June 2009 VA examiner concluded that the Veteran was unable to work due to cognitive decline, that evidence was generated after the period on appeal, and does not in any way suggest that the Veteran was unemployable due to his service-connected head injury prior to October 23, 2008. To the extent that the Veteran, his wife, and other lay witnesses asserted that the Veteran was unable work, they are competent to report their own observations regarding the Veteran's condition, including his difficulties with his occupational duties when he was working. However, they have not demonstrated the necessary knowledge or expertise to render competent opinions as to whether he was unable to secure any gainful occupation solely as a result of manifestations attributable to his service-connected condition. In sum, the Veteran did not meet the schedular criteria for a TDIU prior to October 23, 2008, and the overall weight of the evidence is against a finding that he was otherwise unable to secure or maintain a substantially gainful occupation as a result of his service-connected head injury residuals. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Entitlement to a TDIU prior to October 23, 2008 is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs