Citation Nr: 1312428 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-00 300A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to September 1970. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Albuquerque, New Mexico. At that time, the Board remanded the Veteran's TDIU claim for issuance of a statement of the case (SOC). This was accomplished in January 2013. The Veteran did not submit a timely VA Form 9. However, his representative submitted a post-remand brief in support of the Veteran's claim within the allotted time period. The Board construes this as a timely substantive appeal. FINDINGS OF FACT 1. The Veteran is service connected for diabetes mellitus, rated 20 percent disabling; hypertension, rated 10 percent disabling; tinnitus, rated 10 percent disabling (beginning October 2, 2010); erectile dysfunction, rated noncompensably disabling; and bilateral hearing loss, rated noncompensably disabling (beginning October 2, 2010). His combined disability rating is 40 percent (30 percent prior to October 2, 2010). 2. Service connected disabilities do not prevent him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. The Veteran was sent a letter in July 2009, prior to the appealed from rating decision, which explained how VA could help him obtain evidence in support of his claim. The letter also explained what the evidence needed to show in order to establish entitlement to TDIU and explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record service treatment records, electronically stored VA treatment records, private treatment records, letters from the Veteran's private physician, and written statements from the Veteran. The Veteran was provided with an adequate VA examination in connection with his claim. TDIU The Veteran contends that he is unable to work due to his service connected disabilities. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Additionally it is VA's policy that all Veterans who are unable to follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. Therefore, referral to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in 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). 38 C.F.R. 4.16(b). The Veteran is presently service connected for diabetes mellitus, rated 20 percent disabling; hypertension, rated 10 percent disabling; tinnitus, rated 10 percent disabling (beginning October 2, 2010); erectile dysfunction, rated noncompensably disabling; and bilateral hearing loss, rated noncompensably disabling (beginning October 2, 2010). His combined disability rating is 40 percent (30 percent prior to October 2, 2010). He does not meet the schedular requirements for TDIU. The Veteran was not shown to be unable to engage in substantially gainful employment due to service connected disabilities. The Veteran submitted a January 2008 letter from his private physician. This letter stated that the Veteran had hypertension, hyperlipidemia, degenerative joint disease, obesity, and diabetes and that he was unable to work. It did not indicate why the Veteran was unable to work. In May 2010 the Veteran submitted another letter from his doctor. It stated that the Veteran was diagnosed with diabetes, hypertension, hyperlipidemia, bilateral knee osteoarthritis, and morbid obesity, and that these conditions limited his ability to work. The Veteran is not service connected for hyperlipidemia, arthritis of the knees, or morbid obesity. The Veteran was afforded a VA examination with respect to his diabetes in August 2010. The examiner's report indicated that the Veteran was retired. She assessed that the Veteran's diabetes had no effects on his occupation and no effects on his usual daily activities. A March 2011 VA audiological examination did not assess the effects of the Veteran's hearing loss and tinnitus on employment. An August 2011 letter from the Veteran's doctor indicated that the Veteran was maintaining his diabetes with diet and exercise and had been "doing very well on his own." The Veteran was afforded a VA general medical examination in January 2013 which recorded the symptoms of his service connected disabilities other than hearing loss and tinnitus. After examining the Veteran, the examiner opined that diabetes mildly affected physical and sedentary employment, hypertension had no effect on physical or sedentary employment, and erectile dysfunction had no effect on physical and sedentary employment. The examiner opined that the Veteran's service connected disabilities, either alone or in the aggregate, do not render him unable to secure or follow a substantially gainful occupation. At minimum, sedentary employment should be possible. In sum, the Veteran does not meet the scheduler requirements for TDIU and there is no probative evidence that the Veteran is unable to engage in substantially gainful employment due to his service connected disabilities. The Board has considered the private medical and lay evidence. However, the private opinion is of lessened probative value since the employability determination considered non-service-connected disability. The lay opinions, to include the April 2003 21-4138, are non-specific and lack reasoning. Such bare statements are far less probative than the VA opinions. Because we conclude that the appellant is not "unemployable" within the meaning of 38 C.F.R. § 4.16(b), referral for extraschedualar consideration is not warranted. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Entitlement to TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs