Citation Nr: 1316164 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-12 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from June 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board has reviewed the Veteran's physical claims file, as well as his electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In April 2008, the Veteran presented testimony relevant to the appeal at a RO hearing before a Hearing Officer. In April 2010, he presented testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge (VLJ. Transcripts of the hearings are of record. The issue on appeal was previously remanded by the Board in June 2011 and June 2012 for further evidentiary development and is now ready for disposition upon completion of the ordered development. FINDINGS OF FACT 1. The highest education level attained by the Veteran was two years of college. 2. The Veteran reportedly has past relevant work experience as a cook, dishwasher, and auto mechanic. 3. The Veteran is service-connected for eczema, rated as 60 percent disabling. He is not service connected for any other disability. 4. The Veteran is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected eczema. CONCLUSION OF LAW The criteria for the award of 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, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. The analysis below focuses 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 veteran). 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. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above 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. 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 non-service-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). In the present case, the Veteran is service-connected for eczema, which is rated as 60 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code(DC) 7806. He is not service-connected for any other disability. Because he has one service-connected disability rated at 60 percent, the threshold percentage requirements for the award of a TDIU 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 disability. However, after review of the evidentiary record, to include pertinent medical and lay evidence, the Board finds that the preponderance of the evidence weighs such a finding for reasons explained below. As a preliminary matter, the Board notes that the Veteran is unemployed; however, the duration of his unemployment is not clear after review of the record as he has provided inconsistent statements regarding his history of unemployment. For example, on the May 2005 VA Form 21-8940, he reportedly last worked full-time (i.e., 40 hours per week) as a dishwasher in January 2003 and had previously worked forty hours per week as a cook from November 2000 to February 2001. However, at the June 2009 VA medical examination, he reported that he had not worked since 2000. On an undated VA Form 21-527, the Veteran wrote that he had last worked in 1993 as a chef. On the March 2010 VA Form 21-8490, he wrote that he had not worked since having a stroke in 1994. Despite the inconsistent statements, it does appear that he has been unemployed throughout the period at issue in this case. Furthermore, although he reported that he was denied social security disability benefits, the Board will assume that he is unemployed for the purposes of this adjudication. In this case, the Veteran has repeatedly asserted that he is unemployable due to his service-connected eczema disability. For example, at the RO hearing, he asserted that eczema caused his unemployability and explained that he was told by a head chef that he did not want the Veteran around food when he was breaking out with eczema. Also, at the April 2010 Board hearing, he reported that his appearance due to eczema and its psychological effect had caused his unemployability. However, upon review of the record, the Board notes that the Veteran has provided inconsistent statements regarding the reasons why he believes that he is unable to obtain or maintain substantially gainful employment during the course of this appeal. For example, on the March 2010 VA Form 21-8940, he wrote that that he was unable to secure or follow any substantially gainful occupation due to schizophrenia. He also wrote that he had not worked consistently since 1994 due to a stroke. He made no mention of eczema as a cause of his unemployability. Neither schizophrenia nor residuals of a cerebrovascular accident are service-connected disabilities. Thus, his statements on the March 2010 VA Form 21-8940 suggest that he believed that his unemployability was due to nonservice-connected disabilities, as opposed to his service-connected eczema. Also, on the undated VA Form 21-527, the Veteran wrote that schizoaffective disorder, posttraumatic stress disorder, stroke residuals, irritable bowel syndrome, traumatic arthritis, and eczema were the causes of his unemployability. None of the listed disabilities are service-connected except for eczema. Thus, his statement at this time suggested that he believed that his unemployability was due to the combined effect of his nonservice-connected disabilities and service-connected eczema and not service-connected eczema alone. Furthermore, and importantly, the Veteran's assertion that he is rendered unemployable due to service-connected disabilities is contrary to the competent medical opinion evidence of record. The October 2012 VA medical examiner considered the Veteran's relevant medical history as reported by the Veteran and documented in the claims file, as well as the findings shown on examination, and opined that eczema would not prevent him from obtaining or following a substantially gainful occupation. In providing the rationale for the opinion, the VA medical examiner noted that there was only minimal involvement of the skin with eczema on the day of the examination. The VA medical examiner noted that the Veteran had mild eczema on the lower abdomen and lower back and some eczematous involvement on the lower legs but was otherwise mostly clear of eczema. The VA medical examiner also noted that there were no systemic manifestations of eczema and no functional effects caused by eczema. As the October 2012 VA medical examiner has medical training as a physician, had adequate data on which to base the medical opinion, and provided adequate rationale for the opinion, the Board affords the medical opinion great probative value. Furthermore, there is no medical opinion to the contrary of record. The Board also notes that, when the Veteran underwent a VA general medical examination in December 2006, that VA medical examiner noted that the Veteran's nonservice-connected psychiatric disorder, which was under treatment, impacted his employability. Despite noting that the Veteran demonstrated facial acne and had a service-connected skin disability, the VA medical examiner did not opine that the Veteran's employability was affected by the service-connected skin disability. This medical opinion evidence, which indicates that the Veteran's employability is related to a nonservice-connected psychiatric disability and does not suggest that it is related to the service-connected skin disability, also tends to weigh against the Veteran's assertion that he is unemployable solely due to his service-connected skin disability. The Board further notes that a licensed social worker wrote, on a March 2010 VA Form 21-4138, that the Veteran was disorganized and cognitively impaired with limited ability to maintain employment. The social worker also wrote that the Veteran's recent physical disabilities made it hard for him to ambulate and he had numbness in the hands which made it difficult for him to perform fine motor skills. The March 2010 opinion of the social worker, which indicates that the Veteran was unable to maintain employment due to nonservice-connected physical and cognitive disabilities, provides further evidence against the claim for a TDIU. The Veteran's VA treatment records also provide evidence against finding that he is unable to secure or maintain substantially gainful employment due to service-connected eczema. For example, in September 2008, a VA psychiatrist wrote that the Veteran was unemployable at the time of his discharge from psychiatric hospitalization. He had been treated for substance-induced mood disorder and cocaine abuse following complaints of paranoia and thoughts of retaliation against a neighbor. This evidence indicates that the Veteran was unemployable due to a nonservice-connected psychiatric disability at that time. Also, a March 2008 mental health note reveals that a VA social work associate did not believe that the Veteran was ready to apply for vocational rehabilitation until his "health" was addressed and VA would continue to provide psychiatric support during that period, which suggests that combined physical and mental disability resulted in his unemployability. Moreover, a VA vocational rehabilitation counselor wrote in a May 2004 letter that the evidence reviewed at that time did not show that the Veteran' service-connected eczema interfered with his work in the field of cooking. This evidence further weighs against the claim. While the Veteran has asserted that his eczema prevents him from securing or following substantially gainful employment, he is a lay person and does not have the requisite medical expertise to render a competent medical opinion regarding his claimed unemployability. He has further provided inconsistent statements in this regard, as explained above. For these reasons, the Veteran's opinion is afforded lesser probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, in consideration of the above, the Board finds that the most probative evidence of record does not show that the Veteran is unable to engage in gainful employment due to his service-connected disability. Consequently, the Board finds that a preponderance of the evidence weighs against the claim, and entitlement to a TDIU is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. Because the preponderance of the evidence, however, is against the claim, that doctrine is not applicable. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). 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). In addition, the decision of the Veterans Appeals Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). An error in VCAA notice should not be presumed prejudicial, and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a January 2006 notice letter, the RO advised the Veteran of the evidence needed to substantiate his claim for a TDIU and described the types of information and evidence that he should submit in support of his claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on his behalf in support of his claims. Also, Dingess notice requirements were satisfied by way of the notice letter. Therefore, the RO satisfied VCAA notice requirements prior to the initial denial of the Veteran's claim. In addition to the notice letter discussed above, the Veteran has been provided with a copy of the above rating decision, the SOC, and the multiple SSOCs issued during the course of the appeal, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Regarding VA's statutory duty to assist in claims development, pertinent treatment records adequately identified as relevant to the Veteran's claim have been obtained, or otherwise submitted, and are associated with the record. Additional pertinent records found in the Virtual VA folder were considered by the Agency of Original Jurisdiction (AOJ) in the first instance. He has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Although the Veteran told the undersigned at the Board hearing that he had been denied social security disability benefits, no request for his records from the Social Security Administration has been made. Nonetheless, his representative explained that the records were not relevant to the Veteran's only service-connected disability of eczema; therefore, there was no need to remand the issue on appeal to obtain the records before proceeding with appellate review in this case. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The Board remanded the claim in June 2011 in order to obtain updated VA treatment records and afford the Veteran with a medical examination and obtain medical opinion on whether he was unemployable due to his service-connected eczema. The Board again remanded the claim in June 2012 in order to obtain the updated treatment records and reschedule the medical examination as there was some confusion about the correct mailing address for the Veteran and he had reportedly not received notification of the scheduled VA medical examination. A review of the record reveals that updated VA treatment records were obtained. The Veteran was also afforded with a medical examination in October 2012 and a medical opinion was obtained. As explained below, the medical examination and medical opinion are adequate. For these reasons, the Board finds that there has been compliance with the prior remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The RO afforded the Veteran with a medical examination and a medical opinion has been obtained in connection with the claim. The examination report includes all relevant findings and medical opinions needed to evaluate fairly the claim. The VA medical examiner considered an accurate history of the Veteran's skin disability, current complaints and symptomatology, and the physical findings demonstrated on examination; therefore, the VA medical examiner had sufficient facts and data on which to base the medical opinion. There has been no material change in the Veteran's skin condition since the last examination. Therefore, the Board finds that no further examination is needed. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. ORDER A TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs