Citation Nr: 1315863 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 06-22 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from February 1997 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that, during the pendency of his appeal, the Veteran moved to Georgia; hence, original jurisdiction of his claim was transferred to the RO in Atlanta, Georgia. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in December 2010. A copy of the transcript of this hearing has been associated with the claims file. In its April 2013 Written Brief Presentation, the Veteran's representative raised for the first time a claim of clear and unmistakable error (CUE) in the March 24, 1998 and June 28, 2005 rating decisions alleging that VA erred in rating the Veteran's traumatic brain injury, temporomandibular joint dysfunction and myofascial pain syndrome together instead of providing separate evaluations. This issue 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. The issue of entitlement to a TDIU after April 24, 2005, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Prior to October 17, 2004, the Veteran was employed full time and was attending school part-time through a VA Vocational Rehabilitation program. 2. The evidence demonstrates that, for six months starting on October 25, 2004, until April 24, 2005, the Veteran was unable to obtain or maintain substantially gainful employment due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a TDIU rating were not met prior to October 25, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). 2. The criteria for a TDIU rating were met from October 25, 2004, until April 24, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in September and November of 2004, prior to the initial adjudication of his claim, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. In May 2006, he was advised that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Id., see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). He was also advised on what evidence and/or information is necessary to establish entitlement to an effective date should benefits be granted. However, any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that content-compliant notice was not provided to the Veteran until May 2006; however, his claim was subsequently adjudicated in August 2009. Thus, the Board finds that any deficiency as to timing has been cured. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (defects in timing of notice may be cured by affording the Veteran appropriate notice and subsequent adjudication). The Board may therefore proceed to adjudicate the Veteran's claim without prejudice to him. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in January 2005, May 2005, and November 2005. An additional medical opinion was obtained in November 2012. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2008). The Veteran filed his claim for a TDIU in July 2004. At that time, he was service-connected for temporomandibular joint dysfunction at 20 percent; tinnitus at 10 percent; post concussion syndrome with complicated chronic pain syndrome affecting the head, neck and shoulders with associated headaches at 10 percent; mood disorder at 10 percent; and bilateral hearing loss at 0 percent. His combined rating was 40 percent. Consequently, at the time the Veteran filed his claim, he did not meet the schedular criteria for a TDIU. However, by rating decision issued in June 2005, the RO granted service connection for fibromyalgia and evaluated it as 40 percent disabling effective July 30, 2004, the date of the Veteran's claim for a TDIU. With his now service-connected fibromyalgia, the Veteran's combined disability rating was 70 percent. Thus, the Board finds that he meets the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, the evidence must still show that the Veteran has been unable to pursue a substantially gainful occupation due to his service-connected disabilities. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). VA Vocational Rehabilitation records indicate the Veteran is a high school graduate (1995). He described himself as an above-average student. He also participated in a college-preparatory educational sequence with a concurrent vocational classes in computer technology. While in service, he completed the prescribed course of study for Advanced Electronics Technical Core School. He was accepted into a VA Vocational Rehabilitation program to attend a CIS Diploma Program in Microcomputers starting in October 1999. He attended school from July 1999 until September 2001 when he completed his Diploma program. In December 2003 his program plan was amended for him to complete an Associate's Degree in Multi-Media Technology. The Veteran attended school from January 2004 until October 2004 at which point his file was placed into interrupt status after he failed to return to school or contact his case manager. In July 2005, his vocational rehabilitation program was discontinued. The Veteran reported in September 2005 that he worked in sales at an office supply store from July 2003 to July 2004. He reported his highest monthly gross income from that job was $1,280. Also he reported previously having worked as a corrections officer from November 2002 until April 2003; as a disc jockey from sometime in 2002 until July 2003; in customer service from October 1999 to November 2001; and in sales from September 1998 until January 1999. The lowest monthly income he earned was $960. He claimed he was unemployable due to fibromyalgia and mood disorder and that he became too disabled to work in July 2004. In June 2008, the Veteran reported he had been working since November 2006 as a disc jockey for a radio station earning $800 per month, although he also reported that his current monthly earned income was $1,400. He reported also have previously worked in sales at an office supply store from July 2003 until October 2004 earning gross earnings of $1,000 a month. He stated his disability precluding employment was fibromyalgia, and that he last worked full-time in October 2004. At his hearing in December 2010, the Veteran testified that he had been working for a regional medical center in its IT department starting in September 2010. As of March 2012, VA treatment records show that the Veteran continued to work at this job. A VA Form 21-4192 completed and submitted by the office supply store indicates that the Veteran worked there doing 40 hours a week in customer service from March 14, 2003 until October 25, 2004. A note from the Veteran's VA physician dated November 3, 2004, states that the Veteran "cannot work for 6 mos." He stated that the Veteran "has multiple medical problems including fibromyalgia, [joint] pains, jaw pain, and vascular headaches." The Board notes that the Veteran is service-connected for the fibromyalgia, jaw pain and headaches. The Board finds that this evidence demonstrates that, prior to October 25, 2004, the Veteran was able to be employed full time and attend school. However, it also clearly shows that the Veteran quit his employment and school at approximately the same time in October 2004. Furthermore, the VA physician's November 2004 note clearly demonstrates that the Veteran was not able to work for six months due to mostly because of service-connected disabilities (i.e., fibromyalgia, jaw pain and headaches). Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran was unable to secure and follow substantially gainful employment prior to October 25, 2004; however, for six months thereafter, he was unable to work (or go to school) due to service-connected disabilities as evidenced by the VA physician's note. The Board finds, therefore, that a TDIU is warranted for the six month period commencing on October 25, 2004, and ending on April 24, 2005. To that extent the Veteran's appeal is granted. As for after April 24, 2005, the Board finds that additional development is needed and that is further discussed in the remand section below. ORDER Entitlement to a TDIU due to service-connected disabilities prior to October 25, 2004 is denied. Entitlement to a TDIU due to service-connected disabilities is granted from October 25, 2004 through April 24, 2005, subject to controlling regulations governing the payment of monetary benefits. REMAND The Board finds that the issue of whether the Veteran is entitled to a TDIU subsequent to April 24, 2005, warrants remand for additional development for the following reasons. First, there appears to be medical records that have not been associated with the claims file. The Veteran reported that, while he was living in Florida, he was receiving treatment at the VA Medical Center in Lake City and the VA Outpatient Clinic in Panama City. Progress notes from Panama City from December 2003 to April 2004 are in the claims file; however, none of these records demonstrate a diagnosis of fibromyalgia. The last treatment note available from April 2004 shows he was seen for joint pain with an assessment of arthralgias and that there was "still no good diagnosis" to explain his complaints. The November 3, 2004 VA physician's note, however, indicates that Veteran had a diagnosis of fibromyalgia; however, no treatment notes for that period of time are in the claims file. In addition, the next VA treatment records from Lake City are not until June 2007, more than three years later. Consequently, the Board can only conclude that there are VA treatment records that have not been associated with the Veteran's claims file that may be relevant to his claim. Treatment records subsequent to that date may be highly probative to the Veteran's claim. In addition, the Veteran's representative pointed out that the November 2012 VA examiner was reviewing treatment records that were not of record (although she associated with her report the treatment records in full she appears to have relied upon). The last VA treatment records from the VA Medical Center in Lake City are from May 2012. Consequently, subsequent records should be associated with the Veteran's claims file because they are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board also finds that additional development is needed to determine whether the Veteran's employment at the radio station where he has reported working from November 2006 until approximately September 2010 was marginal employment. The Veteran has reported on multiple occasions his earnings from this employment. Unfortunately, the reports are inconsistent and depending on which one is relied upon may put the Veteran's annual income either below or above the poverty limit for an individual person at that time. Marginal employment shall not be considered substantially gainful employment. Marginal employment is 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. 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). Thus, on remand, the Veteran should be asked to provide verification of his annual income from 2005 to the present. The Board notes that income information should be obtained through the present since the Veteran's testimony at the Board hearing appeared to allege that his employment was still marginal. If the Veteran does not provide such verification, then an inquiry should be made to the Social Security Administration for his income and employment information for those years. The Board also notes that, in a June 2008 statement, the Veteran related that he was offered a job at the radio station because he had a previous relationship with it and a personal relationship with several people there, including the owner/manager. He stated that they were aware of his disabilities upon hiring him and were willing to work around them. He also reported that his wife also was employed there and assumed most of his tasks when he was not able. He also stated that the radio station was being sold and it was believed the new owners would not be willing to extend the same accommodations to him that the current owner had given him. With this statement, he also submitted a letter from the owner/general manager of the radio station. He stated that the veteran had missed countless days of work in relation to his disabilities, and that he had noticed on occasion facial expressions and a reoccurring limp that the Veteran says are due to pain. It appears that the Veteran is arguing that his job at the radio station was sheltered employment. The record, however, is not sufficient to clearly determine that. The Veteran should be asked to provide additional evidence to support a showing that this employment was sheltered, such as statements from his wife, other employees and the prior owner/general manager as to the Veteran's work, number of days off due to his disabilities, type and quality of work, etc. Furthermore, although the Board has obtained opinions regarding the Veteran's employability in 2011 and 2012, these opinions all address the Veteran's employability at the time of the examination, which all the examiners essentially found he was employable since he was working full-time in computers at the time of the examinations. There has been no opinion as to whether the Veteran remained unemployable after the initial six month period that ended April 24, 2005. The Veteran testified at his hearing that he continued to be unemployed for approximately 18 months before moving back to his hometown and obtaining the job with the radio station, which he seems to argue was either marginal or sheltered employment. Consequently, the Board finds that a retrospective opinion as to the Veteran's employability after April 24, 2005, until he began his current employment in September 2010 may be required if the evidence obtained does not support a grant of a TDIU during that period of time. Finally, in its April 2013 Written Brief Presentation, the Veteran's representative asserted that the Veteran's gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS), sleep apnea and hypertension need to be service-connected. The Board interprets this statement as an informal claim for service connection. Generally, in the introduction, the Board would refer the informal claim of service connection to the RO. Here, however, the Board notes that resolution of these issues could well impact upon the Board's consideration of the total rating claim. If service connection were established for any of the other conditions for which service connection is being asserted and a single or combined 100 schedular evaluation resulted, the total rating issue will be rendered moot. See Green v. West, 11 Vet. App. 472, 476 (1998), (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Under these circumstances, the Board finds that, as the above issues are inextricably intertwined with the total rating issue, they should be considered together, and thus a decision by the Board on the Veteran's total rating claim would now be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Associate with the Veteran's claims file his medical records from the VA Medical Center in Lake City, Florida, or the Outpatient Clinic in Panama City, Florida, for treatment of the Veteran's service-connected disabilities from April 2004 to June 2007 and from May 2012 to the present. 2. All necessary notice and assistance should be provided the Veteran in developing the newly raised claims for service connection for GERD, IBS, sleep apnea and hypertension. Thereafter, these claims for service connection should be adjudicated. If service connection is established for any of these disorders, an effective date and rating for that disorder should also be assigned. 3. Contact the Veteran and ask him to provide verification of his income from 2005 to the present. For example, W-2s, income tax returns (if they only show his income alone), annual statements from the Social Security Administration, etc. If the Veteran does not provide verification of his income, then contact the Social Security Administration and request that it provide employment and income information for the Veteran for the years of 2005 through the present. 4. Contact the Veteran and advise him that additional evidence is needed with regard to his apparent contention that his employment at the radio station from 2006 to 2010 was "sheltered employment." He should be advised of what type of evidence he could provide to include lay statements from his wife, other employees, the prior owner/general manager setting forth the type and quality of the work he performed, any personal knowledge of the Veteran's disabilities and how they affected his performance on the job, the amount of sick or personal leave taken due to his disabilities, etc. 5. If, after obtaining the above information and evidence, a TDIU for the period subsequent to April 24, 2005 still cannot be granted, then forward the Veteran's claims file to the VA Medical Center to obtain a medical opinion by a VA physician based upon a review of the evidence of record. The VA physician should review the entire claims file and this remand and should so state in his/her report that such review was completed. After such review, the VA physician should provide an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran was rendered unable to secure or follow a substantially gainful occupation from April 24, 2005, through to September 2010 as a result of his service-connected disabilities of fibromyalgia, temporomandibular joint dysfunction, tinnitus; post concussion syndrome with complicated chronic pain syndrome affecting the head, neck and shoulders with associated headaches; mood disorder and bilateral hearing loss. The VA physician should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran's theories of entitlement should be set forth in detail. If the VA physician determines that he/she cannot provide an opinion without resorting to speculation, the physician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 6. Thereafter, if it has not been rendered moot (i.e., a 100 percent schedular rating has not been awarded for the period of time at issue) (see Green v. West, 11 Vet. App. 472, 476 (1998), citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994)), the claim of entitlement to a TDIU as of April 24, 2005, should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs