Citation Nr: 1313565 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 08-06 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to May 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal was initially denied by the Board in May 2010. The Veteran appealed to the Veterans Claims Court. In March 2011, the Court Clerk granted a Joint Motion for Remand (Joint Motion), which vacated the Board's decision and remanded the case for further development. This matter was remanded in August 2011 and September 2012, and now returns to the Board for appellate review. The Board has reviewed the Veteran's physical claims file and his file on the "Virtual VA" system to insure a total review of the evidence. 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 following disabilities: right ankle at 40 percent, low back at 30 percent, Muscle Group (MG) III at 30 percent, residual scarring at 10 percent, and right leg at 10 percent. The combined total disability rating is 80 percent. 2. The highest level of education attained is four years of college. 3. The Veteran is not shown to be unable to secure or follow a gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 3.340, 3.341(a), 4.1, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. The Veteran contends that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities and that a TDIU is warranted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render a veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In the present case, the Veteran is service-connected for right ankle surgical ankylosis, status post mortar wound, rated as 40 percent disabling; a lumbosacral spine disability, rated as 30 percent disabling; moderate impairment of MG III, rated as 30 percent disabling; several scar disabilities, rated together as 10 percent disabling; and right leg shortening, rated as 10 percent disabling. 38 C.F.R. § 4.16(a). His combined rating is 80 percent. The Veteran meets the threshold percentage requirements for two reasons. First, he is service-connected for two or more service-connected disabilities with one disability rated at 40 percent (i.e., his right ankle disability) and has a combined disability rating over 70 percent (at 80 percent) under 38 C.F.R. § 4.25. Second, his disabilities result from a common etiology of the in-service injury. Therefore, the threshold percentage requirements for a total rating under the provisions of 38 C.F.R. § 4.16(a) are met. As the Veteran has met the threshold percentage requirements for a schedular TDIU, the Board must next determine whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, after careful review of the record, the Board finds that the preponderance of the evidence weighs against the award of a TDIU for reasons explained below. The evidence of record indicates that following his separation from active service in 1953, the Veteran attended four years of college and received a bachelor's degree in accounting. In his formal claim for TDIU, received in October 2006, he indicated that he worked as an accountant from 1957 until 1981 when he retired as a result of his service-connected shoulder, spine, back, and right ankle disabilities. Parenthetically, the Board notes that his shoulder is not service-connected. The Veteran underwent a VA examination in June 2008 to determine the severity of his various service-connected disabilities, which at that time, included the ankle, low back, MG III, and scars. The examiner performed a clinical evaluation and noted observations in detail, including that that the Veteran required intermittent use of a cane for walking and had an antalgic gait with poor propulsion. The examiner also noted that the Veteran had a shortened right leg, by 3 centimeters. The examiner reported that the Veteran was able to stand for up to one hour at a time and could walk for one quarter mile at a time. The examiner also noted that the Veteran had difficulty holding items in his left hand due to the MG III disability. The examiner stated that the Veteran's service-connected disabilities prevented him from engaging in exercise or sports and mildly affected his ability perform chores, shopping, recreation, and traveling; however, the examiner opined that the Veteran's service-connected disabilities had no effect on his ability to perform daily activities of feeding, bathing, dressing, toileting, or grooming. As a rationale, the examiner noted that the Veteran had retired in 1981 based on his age and time in service, and as such the examiner stated the Veteran's disabilities had no effect on his employment. The Veteran was afforded another VA examination in November 2009 which assessed the occupational impairment caused by his service-connected disabilities, which at that time included right leg shortening. The examiner performed a clinical evaluation and noted observations in detail, including the Veteran's use of a cane to ambulate and that he was unable to walk for more than a few yards at time. The examiner noted that the Veteran's muscle disability caused some instances of difficulty in moving his shoulder and holding objects with his left arm. The examiner stated that the Veteran's service-connected disabilities prevented him from engaging in exercise and sports and caused mild impairment in the areas of chores, shopping, recreation, and shopping. The examiner found that the Veteran's service-connected disability caused no impairment in the areas of feeding, bathing, dressing, toileting, grooming, and dressing. The examiner opined that the Veteran's service-connected disabilities did not affect his usual employment. The rationale was that the Veteran had retired in 1981 as his age and time in service made him eligible to do so. The Veteran was afforded another VA examination in October 2012 by a different examiner. The examiner performed a clinical evaluation and noted observations in detail, including that the Veteran reported that his ankle disability had remained stable since his November 2009 VA examination, that he reported his spine disability had worsened, and that there were findings of arthritis noted in his thoracolumbar spine. After examination, review of the Veteran's claims files, and interview with the Veteran, the examiner opined that the Veteran's service-connected disabilities did not prevent him from securing or following a substantially gainful occupation. The examiner explained that the Veteran's service-connected disabilities would not prevent him from obtaining and maintaining a job requiring semi-sedentary work with restrictions including: no prolonged standing, no prolonged walking or climbing stairs, no repetitive bending of the spine, no pulling, and no heavy lifting over 20 pounds. This is the third medical opinion by two different examiners that the Veteran's service-connected disabilities would not prevent him from securing and following substantially gainful employment. The Board notes that prior to his retirement in 1981, he worked as an accountant. There is no indication from the record that his work was not semi-sedentary and that he could not continue to work as an accountant if he chose to do so based on the level of his service-connected disabilities alone. Also of record in the Veteran's "Virtual VA" file, are VA Medical Center treatment records through October 2012 which show that the Veteran receives regular medical care for his service-connected disabilities, as well as various nonservice-connected disabilities. There is no indication from these records that he is unemployable as a result of his service-connected disabilities alone. Further, he has not identified any outstanding VA or private medical evidence that would indicate his service-connected disabilities have caused him to be unemployable. On review of the evidence above, the Board finds the criteria for award of a TDIU are not met. Although the Veteran meets the schedular requirements, the competent and uncontroverted medical opinions of record consistently found (on three separate occasions, by two different examiners) that his service-connected disabilities do not preclude all gainful employment. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes in that regard, that semi-sedentary employment, with restrictions on prolonged standing, walking, climbing stairs, bending, pulling, pushing, and heavy lifting, would be consistent with the Veteran's physical disabilities as documented by the October 2012 VA examiner and with his education, training level, and work history as documented in the claims files. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence of record, to include the Veteran's statements that his service-connected disabilities led to his retirement in 1981, and have prevented him from following gainful employment since that time. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the question of whether a given medical disorder renders the Veteran unemployable is a medical opinion, and lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). In this case, although the Veteran has asserted that his various service-connected disabilities render him totally unemployable, the medical evidence of record contradicts his assertion. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria for a TDIU. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions greater probative value. As such, the Board finds these records to be more probative than the Veteran's assertions of unemployability. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). While the Board notes that the Veteran is in his 80s, the criteria for a TDIU takes into account his service-connected disabilities alone. Consideration may be given to his education, training, and work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. In sum, based on the evidence and analysis above, the Board has found the criteria for TDIU are not met. Accordingly, the appeal is denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2006, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He received follow-up notice letters in May 2009, July 2009, and March 2011. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by the same correspondence dated in November 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA treatment records. Further, he was provided three examinations by two separate examiners undertaken to specifically address the issue on appeal. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs