Citation Nr: 1313193	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  03-32 609	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel



INTRODUCTION

The Veteran served on active duty during the Korean Conflict, from August 1950 to August 1952, and received the Purple Heart Medal and Combat Infantry Badge.

This appeal to the Board of Veterans' Appeals (Board) is from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied his claim of entitlement to a TDIU.

A September 2003 rating decision also denied his claim of entitlement to service connection for heart disorders.  He appealed the denial of this other claim, as well, and, in July 2004, the Board denied this claim for service connection for heart disorders, diagnosed as mitral stenosis and atrial fibrillation, status post open mitral commissurotomy with cardiopulmonary bypass and congestive heart failure.  However, the Board instead remanded his TDIU claim for further development.  He appealed the Board's denial of his claim for heart disorders to the United States Court of Appeals for Veterans Claims (Court/CAVC).  In September 2005, the Court issued an Order granting a Joint Motion to vacate the Board's decision denying this claim for heart disorders, and remanding this claim to the Board for further development and readjudication in compliance with directives specified in the Joint Motion.  Since, however, the Board had remanded, rather than denied, the TDIU claim, the Court did not disturb that portion of the Board's decision.

In May 2006, upon receiving the file back from the Court, the Board remanded the claim for service connection for heart disorders for additional development.  But the Board since has issued another decision in May 2010 continuing to deny this claim, and the Veteran did not appeal that additional decision to the Court, so his claim for heart disorders is no longer at issue.


Also in that May 2010 decision, however, the Board again remanded his remaining claim for a TDIU for still further development, specifically, because there had not been compliance with the prior remand directive to readjudicate this claim following the provision of a July 2004 VA examination and consideration of additional evidence of record.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure compliance).

The Board remanded this claim yet again in August 2012 as the July 2004 VA examination report did not include an opinion as to the overall effect of the Veteran's service-connected disabilities on his employability.  The Board instructed the RO/Appeals Management Center (AMC) to obtain new VA examinations of the Veteran's service-connected disabilities and an opinion as to whether they prevent him from obtaining or maintaining substantially gainful employment.  As discussed in more detail below, this development has been completed and a supplemental statement of the case (SSOC) was issued in January 2013 which took into account the additional evidence of record and continued to deny entitlement to a TDIU.  Accordingly, the Board may proceed with appellate review of this claim.

The Veteran submitted statements in January and February 2013 waiving his right to have the RO/AMC, as the Agency of Original Jurisdiction (AOJ), initially consider the additional evidence he submitted, preferring instead to have the Board consider this additional evidence in the first instance.  See 38 C.F.R. § 20.1304(c) (2012) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).  Moreover, no additional evidence has been submitted since the January 2013 SSOC was issued.

The Board has advanced this appeal on the 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.  Service connection has been established for shell fragment wounds (SFWs) of the right thigh, Muscle Groups XIV and XV, neuroma of the right saphenous nerve, degenerative arthritis of the right knee, malaria, and donor scars of the left thigh.

2.  These service-connected disabilities, alone, so without regards to other factors such as the Veteran's advancing age and non-service-connected disabilities, including especially his deep vein thrombosis, congestive heart failure, and history of left-sided strokes, as likely as not prevent him from obtaining or maintaining employment - even sedentary employment - which could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria are met for a TDIU.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, and 4.19 (2012)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide adequate reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I.  The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, this VCAA notice should be provided prior to an initial decision on a claim by the RO as the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, even if this notice was not provided before initially adjudicating the claim, or if provided was inadequate or incomplete, this timing delay or error in the provision of this notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as in a statement of the case (SOC) or supplemental SOC (SSOC)) after the claimant has had an opportunity to submit additional evidence in response to the notice.  This, in effect, preserves, rather than frustrates, the intended purpose of the notice such that he still is provided opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

Here, prior to the initial rating decision in this case, a December 2002 letter informed the Veteran of the basic requirements for establishing his entitlement to a TDIU on a schedular basis, including insofar as what information was needed from him to obtain pertinent records on his behalf versus the information and evidence he was responsible for obtaining.  Further, in accordance with the Board's July 2004 remand directives, an August 2004 letter again notified him of the requirements for establishing his entitlement to a TDIU on a schedular basis and of the circumstances under which a TDIU additionally may be assigned on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), and in so doing gave examples of the types of evidence and information he could submit in support of his claim and provided notice of his and VA's respective responsibilities for obtaining this supporting evidence, including relevant records and other evidence on his behalf.  The letter also informed him that he should submit any information or evidence pertaining to his claim in his personal possession, the so-called "fourth" requirement of VCAA notice as instructed by the Board, even though this is no longer required under the VCAA.  See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), effective May 30, 2008).  Although the August 2004 letter was not sent prior to initially adjudicating his claim of entitlement to a TDIU, the delay was harmless as he since has had ample opportunity to respond with additional information and evidence following receipt of this letter before his claim was readjudicated and SSOCs issued in July 2012 and January 2013.  See Mayfield, 499 F.3d at 1323.  Therefore, the duty to notify has been satisfied.  See id.


VA's duty to assist under the VCAA includes helping the claimant to obtain relevant records, such as service treatment records (STRs) and other pertinent records, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

To this end, the Veteran's STRs and post-service VA medical records were obtained and are in the file for consideration.  The post-service private medical records he identified as relevant also have been obtained to the extent possible.  As well, VA obtained employment information from his former employers using VA Form 21-4192.  He has not identified any other outstanding records that he wanted VA to obtain or that he believed were relevant to his claim.  Therefore, the duty to assist has been satisfied with respect to obtaining relevant records.  See 38 C.F.R. § 3.159(c).  

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Here, in accordance with the Board's August 2012 remand directives, the AMC provided the Veteran VA compensation examinations for his service-connected disabilities in September 2012, including a general medical examination, a knee and lower leg examination, a scars examination, a muscle injuries examination, a peripheral nerve examination, and an infectious disease examination.  The VA examination reports and opinions are adequate for the purpose of deciding whether he is entitled to a TDIU on account of these service-connected disabilities.  In this regard, the examiners reviewed the claims file and medical history, performed the required examinations and recorded their clinical findings, and provided a clear rationale for their stated opinions that is consistent with their findings and the evidence of record.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one).  There are no inconsistencies or ambiguities in the examination reports, and the Veteran has not challenged their adequacy or thoroughness or competency of the examiners.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to assist with respect to obtaining a VA compensation examination and medical opinion has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. 


The examiners' opinions also are responsive to the Board's remand directive to provide an opinion as to the overall effect of the Veteran's service-connected disabilities on his ability to work in a substantially gainful versus just marginal capacity.  The examiner found that only the Veteran's right knee arthritis was productive of functional impairment in this sense, in that it limited him to less physically demanding, i.e., sedentary work.  This examiner found in the knee examination report that the Veteran's right knee arthritis made it difficult to stand and walk for long periods of time.  Thus, the examiner concluded the Veteran would not be able to perform his "prior type [of] work," which mostly consisted of duties as a truck driver, security guard, and deliveryman, because of his right knee disability.  The examiner also observed however that medical conditions that are not service connected - namely, deep vein thrombosis, congestive heart failure, and a history of left-sided strokes - prevents the Veteran from working "at all."  Thus, as the examiner found that the Veteran's other service-connected disabilities did not produce any functional impairment, including with regards to occupational functioning, the examiner's opinion that the Veteran's right knee arthritis limits him to sedentary work only is responsive to the issue of the overall effect of his 
service-connected disabilities on his employability.  But in concluding the Veteran would have to perform "sedentary work only" due to his service-connected right knee arthritis, the examiner clearly found that the Veteran was still able to do this type of work when considering his service-connected disabilities alone.  Thus, the examiner's opinion adequately responds to the Board's remand directives and enables the Board to make an informed decision on this issue. 

VA examinations of the Veteran's service-connected disabilities also were earlier performed in July 2004 and August 2008 pursuant to the Board's prior July 2004 remand directives.  To the extent there were deficiencies in those examinations, including insofar as providing an opinion as to the effect of the Veteran's 
service-connected disabilities in combination on his employability, this was corrected in the September 2012 VA examination reports, as discussed above.


In sum, then, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate effectively in the development of this claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  Any defect in the notice or assistance provided will not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged.  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  He has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002).  Accordingly, the Board may proceed with appellate review of this claim, including since there has been compliance with the Board's July 2004, May 2010, and August 2012 remand directives to provide proper VCAA notice, obtain additional VA examinations and opinions, and to readjudicate the claim following this additional development.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  


II.  Analysis

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2012).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a) (2012).  If there is only one service-connected disability, it must be rated at 60 percent or more; if instead there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id.  For the purpose of satisfying these rating requirements, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, or resulting from common etiology or a single accident, or affecting a single body system, or multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war, will be considered as one disability.

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, VA's General Counsel  concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341 , 4.16, 4.19.  See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).

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."  In this context, the Court 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. 

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 his overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility.  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

And as the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012).

The § 4.16(a) schedular criteria for TDIU consideration are satisfied.  Specifically, service connection has been established for a SFW, right thigh, Muscle Group XIV, rated as 30-percent disabling; SFW, right thigh, Muscle Group XV, rated as 
20-percent disabling; neuroma, right saphenous nerve, rated as 10-percent disabling; degenerative arthritis of the right knee associated with SFW, right thigh, Muscle Group XV, rated as 10-percent disabling; malaria, rated as 0-percent disabling, i.e., noncompensable; and donor scars, left thigh, also rated as noncompensably (0-percent) disabling.  So the combined rating is 60 percent.  See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).

The Veteran's SFWs, degenerative arthritis of his right knee, and neuroma of his right saphenous nerve all result from a common etiology and so are considered as one collective disability in determining whether he satisfies the threshold minimum rating requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU.  38 C.F.R.§ 4.16(a)(2).  The application of the Combined Ratings Table in § 4.25 yields a 55 percent rating based on the evaluations assigned these disorders, which in turn is rounded up so results in a single 60 percent rating.  Accordingly, the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) are met, so he does not, instead, have to resort to the special extra-schedular provisions of § 4.16(b).

In his November 2002 TDIU claim and in an August 2004 statement, the Veteran asserted that he had to discontinue working because he could not stand or walk for long periods of time and could not climb stairs or bleachers.  His March 2003 formal application for TDIU (VA Form 21-8940) reflects that from 1997 to 2002 he had worked as a truck driver, security guard, deliveryman, and security guard.  

He indicated that he had been "laid" off from his jobs as a security guard in 2001 and 2002.  He stated that he could no longer climb into the cab of a truck, that his ability to walk was "at [its] worst," that he took medication for pain at night in order to sleep, and that he could not stand for prolonged periods.  He related that he had been offered employment at Wal-Mart but could not perform the tasks of the job as he was unable to stand.  He noted in this regard that his feet would swell.

There are four statements of record from previous employers of the Veteran submitted on VA Form 21-4192, Request for Information in Connection with Claim for Disability Benefits Statements.  Specifically, a trucking company where he was employed from August 1999 to March 2001 submitted a statement indicating that his employment had ended because the company had sold its trucks.  However, it was also noted that he was unable to climb up and clean the bed of the truck, and that he had been absent from work for three weeks due to falling off a truck and injuring his head.  A statement from a company where he had worked as a security guard from October 1999 to April 2001 simply states that his employment there ended due to "lack of work."  Finally, statements submitted from employers at companies where he had worked as a courier and deliveryman during the 
early-to-mid 1990s state, respectively, that he "resigned due to medical conditions" and that he was "unable to get in and out of [the] delivery truck due to bad feet and legs."

Turning next to the medical evidence, a June 2002 VA examination report states that the Veteran reported weakness, pain, stiffness, and muscle cramping of his right lower extremity.  He stated that he could not do physical work due to his right lower extremity symptoms, particularly with regard to activities requiring him to squat down low.  In this regard, he reported problems with his right lower extremity when working in the past.  His "main problem" was climbing steps and any activities requiring him to squat down.  If he squatted or kneeled down low he was unable to come back up because of pain and weakness.  He also reported being limited in his ability to walk up and down stairs due to his right lower extremity symptoms.  He had to hold on to the railings in order to pull himself up the stairs and to support himself when coming down stairs.  He further reported right calf pain and stated that in colder conditions his right foot turned cold with a throbbing pain.  He stated that the scar over his right thigh was sensitive to touch or any kind of pressure, which he described as an electric shock-like pain.  When he walked it felt like his right knee was going to lock up, and he further reported pain and stiffness of this knee.  He also had difficulty picking up his right foot which resulted in his dragging the right foot off and on.  If he drove for more than two hours he had increased stiffness and pain in his right distal thigh and knee. 

On objective physical examination, it was observed that he had an antalgic gait with pain over his right distal thigh and anterior aspect of his right knee.  He had a right genu valgus that was not present on the left side.  There were two large scars noted over the right distal thigh.  One was on the anterior aspect and measured 7x5 centimeters.  It adhered to the underlying structure with a defect of the quadriceps muscles.  The other scar was over the posteromedial right thigh with evidence of a muscle defect of the hip adductor muscles and medial hamstring muscles.  The scar adhered to the underlying tissue structure.  There was a severe electric shock-like pain during deep pressure over the scar at the posteromedial distal thigh.  Both scars were sensitive to light touch and also to deep pressure.  On range-of-motion testing, he had right knee extension to 15 degrees and flexion to 118 degrees, with some pain over the right knee and right distal thigh without significant crepitus.  The stability of the knee was intact.  On neurological testing, there was decreased pinprick sensation over the right leg.  Muscle testing of the right leg was normal "with the exception of fair right knee extensor and fair right knee flexor."  

Based on the results of that examination, the examiner diagnosed status post shrapnel injury to the right thigh with huge sensitive scars, particularly with respect to the posteromedial distal thigh scar.  He opined that the electric shock-like pain that the Veteran experienced when this scar was pressed could be due to a neuroma of the saphenous nerve.  The right thigh also showed evidence of loss of muscle mass and weakness of right knee extensors and flexors.  Finally, the examiner found that the Veteran had limited range of motion of the right knee joint.


During the subsequent July 2004 VA examination, the Veteran reported severe cramping around the area of the right thigh wound.  The pain was particularly severe at night but could also happen during the day when he was "up on the leg."  He also reported having no feeling over his knee cap, which prevented him from squatting or getting down on the knee.  He denied using crutches, a brace, or a cane.  Examination of his right leg revealed two large wound scars in the area of his right thigh.  One was a 5x5 scar on the anterior thigh with underlying tissue loss.  The scar was tethered to the underlying muscle.  There was no ulceration, skin lesion, or skin breakdown of the scar.  The other scar was on the inner area of the thigh that was approximately 8 centimeters long by 3 centimeters wide at its widest point with underlying tissue loss.  The scar was tethered to the muscle below.  There was no skin breakdown or ulceration.  Neither scar was sensitive or tender.  Muscle strength in the thigh was 5/5.  Sensation was intact over the right thigh and right lower leg.  However, there was no sensation to light touch or pinprick over the patella in an area of approximately 15x15 centimeters.  Range of motion of the right knee was from 0 degrees of extension to 100 degrees of flexion.  There was no ligamentous instability.  There also was no swelling or erythema.  There was no change in range of motion of the knee with repetitive use.  An X-ray showed a tiny effusion of the right knee but was negative for osteoarthritis.  The examiner diagnosed status post SFW to the right thigh Muscle Groups 15 and 16, and neuroma of the right saphenous nerve with loss of sensation. 

An August 2008 VA examination report additionally addressed the residuals of the malaria, which the Veteran had contracted while serving in Korea.  The examination report states that his symptoms had resolved without medication and that he did not have any further problems.  The examiner noted that the Veteran had congestive heart value (CHF), which had its onset during the 1990s, and that he had undergone mitral valve replacement surgery in May 2008.  The examiner did not associate the Veteran's heart condition with his previous bout of malaria.  And after reviewing the claims file and medical history and examining the Veteran, the examiner concluded the Veteran's malaria was not then active or even present.  The examiner pointed out that testing for malaria was negative.  The examiner concluded that the "baseline manifestations of the non-service connected disease or injury" was chest pain and shortness of breath after walking one block.  The examination report form also asked the examiner to address any increased disabling manifestations of the non-service-connected disease or injury which were proximately due to the service-connected disability.  The examiner responded by entering "mitral valve disease and worsening CHF [and] shortness of breath."  When asked on the form to provide a medical opinion on the non-service-connected condition, the examiner responded that he could not resolve this issue without resorting to speculation.

Although the last sections in that August 2008 VA examination report seem to suggest the Veteran may have a heart condition associated with his malaria residuals, the issue of entitlement to service connection for a heart condition is not on appeal before the Board, and the examiner noted earlier in the examination report that the Veteran's CHF and mitral valve replacements occurred "long after his malaria bout."  Moreover, in an October 2008 VA heart examination report, the examiner made clear that malaria is not associated with valvular disease and that without a confirmed history of rheumatic fever the examiner could not find a relationship without resorting to speculation between the Veteran's malaria and cardiac symptoms that had manifested thirty years later.  Primarily for this reason, the Board denied service connection for the Veteran's heart conditions in its July 2004 decision.  Thus, for the purposes of this appeal, the Veteran's heart conditions and associated symptoms, for which service connection has not been established, may not be considered among the service-connected disabilities affecting his occupational functioning.

In September 2012, the Veteran underwent VA examinations addressing his right knee arthritis, right thigh scars, right thigh muscle wound residuals, the neuroma of the saphenous nerve, and malaria residuals.  The examiner found that the Veteran had difficulty standing and walking for long periods of time due to his right knee disability.  With respect to his right thigh scars and left thigh donor scar, the examiner found they did not result in limitation of function or impact the Veteran's ability to work.  The examiner likewise found that the Veteran's muscle injury residuals of the right leg did not affect muscle substance or function and did not impact his ability to work.  With regard to the neuroma of the saphenous nerve, the examiner stated that the Veteran had decreased sensation over the distal anterior thigh.  On neurological examination, the examiner found that it was productive of mild incomplete paralysis.  The examiner concluded that it did not impact however the Veteran's ability to work.  With regards to the malaria, the examiner found that there were no residuals of the Veteran's previous bout of malaria during his active military service and that it, too, did not impact his ability to work.  The examiner also noted in the examination reports that the Veteran used a wheelchair because of deep vein thrombosis (DVT) in both lower extremities and a walker at home due to imbalance following a stroke.  These conditions however are not service connected.

In the general medical examination report, the examiner found that only the Veteran's right knee arthritis caused actual functional impairment, consistent with the examination reports specific to each of his service-connected disabilities discussed above.  The examiner opined that such impairment limited the Veteran to sedentary work.  Thus, the examiner concluded the Veteran would not be able to perform his "prior type [of] work" due to his right knee disability.  The Board notes that, since at least the 1990s, such work essentially has consisted of duties as a truck driver, security guard, and deliveryman.  The examiner further observed that medical conditions that are not service connected - namely, the DVT, CHF, and a history of left-sided strokes - prevent the Veteran from working "at all."

This collective body of evidence shows that only the Veteran's service-connected right leg disabilities are symptomatic, and that only his right thigh muscle and right knee disabilities actually cause functional impairment.  Specifically, according to the June 2002 VA examination report, he has some weakness of the extensor and flexor muscles of the right leg and painful and limited motion of the right knee joint.  His scars, while painful, have not been shown to affect his ability to use his right leg.  His neuroma of the right saphenous nerve, which is manifested by loss of sensation and a "shock-like" sensation when his right thigh scar is pressed, has not been shown by clinical evidence to affect his right leg functioning, although he states that the loss of sensation affects his ability to squat and kneel.  He has not had any malaria symptoms or residuals during the pendency of this claim, certainly not since the filing of this claim.  Thus, only his right leg symptoms affect his occupational functioning.

This evidence that has been discussed is in some ways favorable to the claim and in other ways not so much.  Ultimately, the VA compensation examiners have concluded that, while physically exertional work is certainly no longer a viable option for the Veteran given the severity of his service-connected disabilities, sedentary work still is, even accounting for the impairment attributable to the service-connected disabilities affecting his right leg.  His prior jobs as a truck driver, security guard, and deliveryman apparently involved not just sitting, but also prolonged standing and walking or more intensive use of this leg to get up and down from the truck bed or to go up and down steps to make deliveries.  Although he stated that he experienced right leg symptoms even when sitting, he was able to drive for two hours before his leg started getting stiff and painful, according to his recorded statements in the June 2002 VA examination report.  So it is at least debatable whether he can perform even a sedentary job and even if allowing him to periodically stand up and stretch his leg, as needed, seeing as though intrinsic to this determination is the question of whether any such job permitting this freedom would only amount to a job of accommodation and, thus, not constitute substantially gainful employment, rather, only instead what amounts to marginal employment.  38 C.F.R. §§ 4.16(a), 4.18.  Moreover, there is the additional matter of whether his level of education, prior work experience and training would present real opportunities for employment with this level of accommodation (only sedentary work), especially since this narrows the type of jobs that he potentially could perform, though one could argue that he perhaps still could work as a general office clerk and parking lot attendant, as examples.

In sum, while it has been determined that he is unable to work "at all", so even in a less physically demanding, i.e., sedentary capacity due to his non-service-connected DVT, CHF, and history of left-sided strokes, as confirmed by the September 2012 VA compensation examiner, the evidence is in relative equipoise, meaning about evenly balanced for and against the claim, concerning whether his service-connected disabilities alone, so without regards to his advancing age and these 
non-service-connected disabilities, are so disabling as to prevent him from obtaining or maintaining substantially gainful employment in a sedentary capacity that would be considered substantially gainful versus just marginal in comparison.  See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding the opinion of a medical professional more probative due to the latter's expertise); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence").  And since the evidence is about evenly balanced on this determinative issue of whether sedentary employment, even though still an option in a strict sense, would be enough in this circumstance to be substantially gainful versus just marginal employment, the Board is resolving this doubt in the Veteran's favor and resultantly granting his TDIU claim.  See 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.  As the evaluations assigned for his service-connected disabilities meet the requirements for schedular consideration of entitlement to a TDIU, and in fact establish this entitlement, the issue of referral for extra-schedular consideration is moot.  See 38 C.F.R. § 4.16(a), (b).


ORDER

The claim of entitlement to a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs