Citation Nr: 1315233	
Decision Date: 05/08/13    Archive Date: 05/15/13

DOCKET NO.  94-28 490A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Appellant and C.S.


ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The Veteran served on active duty from June 1979 to June 1982 and from January 1987 to December 1990.

The matter of TDIU comes to the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran presented testimony at a Board hearing in September 2004.  The matter of TDIU was last remanded in August 2012 for further development.  


FINDINGS OF FACT

1.  Service connection is in effect for fibromyalgia with low back pain, 40 percent; left Achilles tendonitis, 10 percent; right Achilles tendinitis with heel spurs, 10 percent; bilateral cataracts, 0 percent; and bilateral hearing loss, 0 percent.  The combined rating for the service-connected disabilities is 50 percent.

2.  The Veteran's service-connected disabilities alone do not preclude substantially gainful employment consistent with his educational and occupational background.


CONCLUSION OF LAW

The schedular criteria for TDIU are not met; a TDIU rating is not warranted; referral for extraschedular consideration is not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R.
§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The record shows that in a February 2004 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal.  The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio; Charles v. Principi, 16 Vet. App. 370 (2002).

The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 
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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In this case, the RO provided VCAA notice to the Veteran in February 2004.  The Board acknowledges that this letter was sent to the Veteran after the April 1994 decision that is the basis for this appeal.  In this case, however, the unfavorable RO decision that is the basis of this appeal was already decided - and appealed -- by the time the current section 5103(a) notice requirement was enacted in November 2000.  The Court acknowledged in Pelegrini v. Principi, 18 Vet. App. 112, at 120 (2004), that where, as here, the section 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice.  Rather, the appellant has the right to content-complying notice and proper subsequent VA process, which he has received in this case.  Notice was followed by subsequent supplemental statements of the case.

In sum, the Veteran has received all essential notice, and has had a meaningful opportunity to participate in the development of his claim.

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes post-service VA and private medical records, a number of reports of VA examinations, records from the Social Security Administration (SSA), and lay statements.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the claim and that no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.

For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA.  See 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b), 20.1102 (2012); Pelegrini, supra; Quartuccio, supra; Dingess, supra.  The Board finds that the RO complied with the Board's August 2012 remand by examining the Veteran for hearing loss disability and reconsidering his TDIU claim thereafter.

Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant.  Thus, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra.

II. Analysis

The Board has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system).  

TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.  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.  38 C.F.R. § 4.16(a).

Furthermore, it is the policy of VA 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).  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); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function.

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board notes initially that the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16(a) are not met.  The Veteran's service-connected disabilities are: fibromyalgia with low back pain, 40 percent; left Achilles tendonitis, 10 percent; right Achilles tendonitis with heel spurs, 10 percent; bilateral cataracts, 0 percent; and bilateral hearing loss, 0 percent; the combined rating for the service connected disabilities is 50 percent.  Accordingly, a TDIU cannot be granted under the schedular criteria of 38 C.F.R. § 4.16(a).  

Second, regarding potential entitlement to TDIU under 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance.  Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).

The Veteran contends that he is unemployable.  In August 1994, he noted that SSA had rated him totally disabled.  [A June 1994 SSA decision shows that this was due to a personality disorder, which is not service-connectable.  38 C.F.R. § 3.303(c). (2012).]  Originally, in April 1993, he alleged that head injury, mental retardation, and autism rendered him unemployable.  In February 2001, he alleged that he was unemployable due to bipolar manic depression.  These are not service-connected, however, and claims for service connection for memory loss due to head injury; bipolar disorder; and PTSD have been denied.  Mental retardation is not service-connectable.  38 C.F.R. § 3.303(c).  The Veteran indicated in April 1993 that he last worked full time in August 1991 as a skinner in a food processing company.  Prior to that, he had been a diesel mechanic in service.  He reported that he had one year of college education.  He stated that after service, he had tried to find work, but that his memory was not good and his body did not respond as it should.  According to an October 1991 private medical record, the Veteran had also been a construction laborer.  During a July 2004 VA evaluation, he indicated that he does housework; in August 2004, he indicated that he was active; and in June 2006, he indicated that he had a cat and dog.  

However, no evidence, including from the Veteran, indicates that disabilities that have been service-connected, either individually or in combination with each other, preclude him from obtaining or maintaining substantially gainful employment; therefore referral for extraschedular consideration is not warranted.

Overall, the record may support a finding that the Veteran is totally disabled, as reflected by SSA's determination, and by mental health information of record.  However, with regard to the TDIU claim, the Board may only look to the service-connected disabilities.  The Board has considered the Veteran's statements and hearing testimony and does not doubt his sincerity in believing that he is unable to engage in gainful employment.  However, no medical evidence indicates or even suggests that his service-connected disabilities, alone or in combination with each other, preclude him from engaging in all forms of substantially gainful employment consistent with his education and work experience.  Although the Veteran's prior jobs involved physical activities, his service-connected disabilities are not shown to preclude sedentary jobs consistent with his level of educational attainment.  The VA examination reports and other records showing impairments caused by these disabilities have been considered.  

Absent the minimum percentage requirements for basic eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a) being met, and given that no evidence shows impairment due to service connected disabilities of such severity as would preclude all forms of employment, the Board concludes that referral of this matter for extraschedular consideration is not necessary.  The evidence shows that the Veteran is active and does housework.  Obviously, his service-connected disabilities somewhat impair his ability to engage in substantially gainful employment, as reflected by the ratings assigned.  His most severe service-connected disability is his fibromyalgia, which is rated as 40 percent disabling.  The compensable disabilities cause some limitation of motion of the joints involved, and there are noncompensable eye and hearing loss disabilities.  However, the preponderance of the evidence is to the effect that the service-connected disabilities alone do not render him unemployable.  The Board stresses that his nonservice-connected mental health issues cannot be considered since they are not service-connected. 

As the preponderance is against this claim, there is no reasonable doubt to be resolved in the Veteran's favor, and the appeal in the matter must be denied.  38 U.S.C.A. § 5107(b); 38 U.S.C.A. § 5107; Gilbert.



ORDER


A TDIU rating is not warranted.  The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs