Citation Nr: 1314010 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 08-35 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, 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 & Supp. 2012). The Veteran served on active duty from July 1955 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in March 2006. In May 2011 and November 2012, the claim on appeal was remanded for additional evidentiary development. After the case was returned to the Board for further appellate consideration, additional private records were submitted in support of the Veteran's claim. Under VA regulations, new and pertinent evidence must first be reviewed by the agency of original jurisdiction (AOJ) unless accompanied by a waiver of AOJ review or unless the Board determines that the claim may be granted in full without AOJ review of the new evidence. See 38 C.F.R. § 20.1304(c) (2012). In this case, the board finds that a remand for AOJ consideration of the new private records is not necessary. As discussed in detail below, the claim for a TDIU is being granted. As such, initial consideration of the evidence by the AOJ is not necessary. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issue of entitlement to a higher initial rating for service-connected coronary artery disease has been raised by the record via statements submitted by the Veteran in December 2011 and August 2012, and medical evidence submitted by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's service connected disabilities render him unemployable. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. TDIU Criteria TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2012). It is the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2012). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, therefore, must evaluate whether there are circumstances in a veteran's case, apart from any nonservice connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). Factual Background When the Veteran initially filed a claim for a TDIU in April 2005, he indicated that he had a high school degree. Service connection is in effect for coronary artery disease (CAD), status post myocardial infarction and triple vessel coronary artery bypass (30%), peripheral neuropathy of the left lower extremity (30%), right lower extremity (30%), left upper extremity (20%), right upper extremity (20%), type II diabetes (20%), tinnitus (10%), malaria (0%), migraine headaches (0%), left thumb scar (0%), residual scar, status post coronary artery bypass graft (0%), diabetic retinopathy and cataracts (0%), erectile dysfunction (0%), bilateral hearing loss (0%), and hypertension (0%). The combined evaluation for compensation is 90 %. Most of these conditions are secondarily related to the Veteran's service-connected diabetes. As reported earlier, this claim (and others) was before the Board in November 2012. At that time, increased ratings were granted for several conditions, and the claim for a TDIU was remanded for additional evidentiary development. In November 2012, the Board summarized the clinical evidence , to include VA peripheral nerves examination and nerve conduction study in December 2004, as well a January 2006 VA examination, to assess his diabetes. The Board also considered private treatment records which showed continued treatment for peripheral neuropathy. Additional nerve conduction study in January 2008 was reviewed. An October 2008 letter by a private physician regarding peripheral neuropathy treatment was reviewed. The Board's November 2012 decision noted that the Veteran underwent additional peripheral nerves exams in November 2011 and May 2012, the results of which were summarized in detail. Based on the findings made, particularly at these most recent VA exams, the Board assigned increased ratings for the upper right and left extremities. Moreover, increased ratings were assigned for the right and left lower extremities from January 4, 2006. Also of record at the time of the Board's 2012 decision were numerous statements in support of the Veteran's claim, attesting to the fact that his working career ended as a direct result of his diabetes and heart conditions. It is noted that the Veteran gave a work history of working in a civil service department testing weapons for 19 years after service before retiring in 1998. One statement indicated that the Veteran was on extended sick leave prior to his retirement. For purposes of clarity and efficiency, additional summarization of the evidence considered by the Board in 2012 will not be repeated here. As indicated above, however, it is all of record and has been reviewed. In 2012, the Board requested that the VA examiner who conducted the VA examination in May 2012 provide an addendum that addressed all impairment/symptoms caused by each service-connected disability. Specifically, she was to identify each function that was prohibited based on associated service-connected impairment. This was to include the Veteran's ability to sit, walk, and stand, and the duration for each. She was to specifically address the Veteran's ability to work in either sedentary or manual type positions. Added to the record after the Board's remand were private treatment records from 2011 and 2012, some of which were not previously of record. These documents include an August 2012 report that the Veteran was status post angioplasty six months earlier. He felt well at this time, and his energy level was excellent. He had no chest pain and no shortness of breath. The addendum report requested from the VA examiner who had conducted the previous evaluation of the Veteran in May 2012 is dated in January 2013. The examiner noted that she reviewed the claims file and spoke on the telephone with the Veteran. She noted that his diabetes mellitus was controlled with oral medications. There was no impairment due to this condition. As to impairment related to his peripheral neuropathy of the right upper extremity, he had mild functional limitation due to symptoms of numbness and paresthesias/pain. He found it hard to hold a pencil. On a typical day, he was independent with activities of daily living. He used the computer and assisted with light home chores. As to residuals associated with the peripheral neuropathy of the bilateral lower extremities, there was moderate functional limitation due to symptoms of constant burning/paresthesia/pain and numbness, and itching at might. He reported gait and balance problems. He reported the inability to drive and difficulty in ambulating. He used a cane and walker. As to the Veteran's hearing loss and tinnitus conditions, she referred to a previous VA examination (May 2012) at which time it was noted that he had a bilateral sensorineural hearing loss that made it hard to hear people talking. His complaints of tinnitus did not result in any impairment of function. The Veteran's malaria, headaches, and scars had resolved without residuals. His hypertension was controlled with medication. He had erectile dysfunction but this did not result in functional impairment. As to the Veteran's CAD, he reported occasional chest pain and said that he could not walk very far. She noted, however, that there was no functional impairment based on objective medical and clinical record. As a result of peripheral neuropathy residuals, the examiner opined that the Veteran was only able to assist with light household chores. He was unable to drive due to these residuals and needed a walker to walk long distances (i.e., 1-2 blocks). The VA examiner specifically noted that when considering all of the Veteran's service-connected disabilities and associated symptoms, he should be able to obtain and retain substantially gainful work whether sedentary and/or light manual, if he so chose to do so. Added to the record subsequent to the transfer of the claims file to the Board are private treatment records dated in February 2013 and April 2013. These records reflect treatment for CAD. In February 2013, the Veteran reported increased fatigue associated with increased frequency of angina. His symptoms were not necessarily exertional, although he did admit to shortness of breath if he pushed himself too hard. His blood pressure and heart rate were marginally elevated, and the Veteran said that the reading was about where it always was when he took his blood pressure at home. Following evaluation of the Veteran, the examiner noted that his symptoms were certainly "worrisome" for progressive CAD. At the time of this visit, the examiner resumed the Veteran's nitroglycerin patch and increased his medication. In an additional record dated in April 2013, the Veteran's private physician noted that she had followed the Veteran for several years for his CAD. She noted that in February 2013, he experienced a progression in his symptoms resulting in further reduction in his stamina and impairment of his functional capacity. In her opinion, this progression in cardiovascular symptoms coupled with diabetes and chronic peripheral neuropathy made it unlikely that the Veteran would be able to perform light manual duty or even prolonged sedentary work. Analysis The Veteran has been awarded service connection for CAD, status post myocardial infarction and triple vessel coronary artery bypass (30%), peripheral neuropathy of the left lower extremity (30%), right lower extremity (30%), left upper extremity (20%), right upper extremity (20%), type II diabetes (20%), tinnitus (10%), malaria (0%), migraine headaches (0%), left thumb scar (0%), scar status coronary artery bypass graft (0%), diabetic retinopathy and cataracts (0%), erectile dysfunction (0%), bilateral hearing loss (0%), and hypertension (0%). The combined evaluation for compensation is 90 %. Most of these conditions are secondarily related to the Veteran's service-connected diabetes. The Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy affect a single body system (i.e. nerves) and combine to a rating that satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). The evidence of record establishes that the Veteran has a high school education, and earned a Bachelor's degree and a Master's degree. In addition, he worked for approximately 20 years after service testing weapons. He had not worked since 1998, and he retired due to diabetes and CAD. Although it is claimed by the Veteran and others, that his service-connected disorders alone make him unemployable, a VA examiner was specifically requested to add an addendum to a thorough evaluation of the Veteran that she had conducted in May 2012. In the January 2013 addendum, she specifically commented on the functional impairment resulting from each of the Veteran's service-connected disorders. She opined that he could work either in a sedentary position and/or in an occupation that involved light manual chores. This opinion is found to be competent and well-supported by the evidence of record. As indicated above, private records dated subsequent to the VA examination were recently added to the claims file. These records reflect some increase in symptoms associated with the Veteran's CAD. Moreover, they include an opinion by the Veteran's private physician that he is precluded from gainful employment based solely on service-connected disorders, to include heart disease and chronic peripheral neuropathy. While the VA examiner opined in 2012 that the Veteran should be able to work in a sedentary or light manual position, given the limitations described by the Veteran and given the opinion of increased symptoms and inability to work by the private examiner in 2013, it is concluded by the Board that the Veteran's service-connected disabilities preclude him from realistically obtaining and maintaining any form of gainful employment. All reasonable doubt was resolved in the Veteran's favor in making this determination. Consequently, the Board finds that the weight of the evidence supports a grant of a TDIU. ORDER Entitlement to a TDIU is granted, subject to the rules governing payment of monetary benefits. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs