Citation Nr: 1316835 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 04-16 815A ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from December 1987 to December 1989, from April 1992 to February 1994, and from July 1996 to July 2001. This matter came to the Board of Veterans' Appeals (Board) from a July 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in December 2009, February 2011, and June 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by affording the Veteran VA examinations and issuing supplemental statements of the case. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected bipolar disorder, bilateral pes planus, low back strain, and bilateral shin splints do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria of entitlement to a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in December 2009, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the December 2009 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a February 2012 supplemental statement of the case, following the provision of notice in December 2009. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations. In a March 2013 statement, the Veteran's representative stated that there was no additional evidence to submit and requested that the claim be forwarded to the Board. The Board acknowledges the representative's April 2013 request for another VA examination since the Veteran had failed to report. However, a review of the records shows that the Veteran had cancelled a VA examination that was requested in February 2011. Since that time, he has appeared for September 2012 and December 2012 VA examinations, which altogether addressed TDIU for all of his service-connected disabilities. Thus, additional development is not necessary. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. TDIU 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(a). Provided that if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the applicable percentage standards provided in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total disability rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for bipolar disorder (30 percent, effective July 9, 2001; 50 percent, effective July 14, 2003; and 70 percent, effective December 10, 2012); bilateral pes planus (10 percent, effective July 9, 2001; and 30 percent, effective December 10, 2012); low back strain (0 percent, effective July 9, 2001; and 10 percent, effective May 8, 2009); left lower leg shin splints (0 percent, effective July 9, 2001); and right lower leg shin splints (0 percent, effective July 9, 2001). Overall, the Veteran has a combined service-connected disability rating of 80 percent. See 38 C.F.R. § 4.25. Thus, the percentage criteria listed under 38 C.F.R. § 4.16(a) have been met. The Board will now consider whether the Veteran is unemployable in fact solely by reason of his service-connected disabilities. On a statement received in July 2003, the Veteran's wife stated that the Veteran becomes physically ill when expected to leave the house. When he was out, he could not go anywhere with crowds due to his physical and mental reactions. She mentioned uncontrollable and unpredictable mood swings. She stated that the Veteran was unable to hold a steady job. She stated that on his best days, he managed to get up and leave for work after a physical reaction. On his worst days, he became so physically ill or mentally depressed that she had to call his job and make up an excuse for his absence. Sometimes when he was manic, he felt underappreciated and overqualified. When depressed, he thought others at work were talking about him, and believed authority hated him and was conspiring against him. The Veteran would then quit his job believing that people at his place of employment were looking for a reason to fire him. In a July 2003 statement, the Veteran agreed with his wife's statements regarding the impact of his cyclothymic disorder on his occupational and social functioning. On substantive appeal received in May 2004, the Veteran stated that he is unable to maintain social relationships, which has caused his "inability to hold a job." A July 2009 VA mental examination reveals that the Veteran had been working at Disney World (Disney) as a chef and stage manager and had been laid off due to the poor economy. He had not worked since then. He spent time at home and was looking to returning to school with Vocational Rehabilitation. It was noted that he had graduated from culinary school in 2004 and worked as a chef for 2.5 years and as a stage manager for 2 years. The Veteran felt a sense of loss and betrayal over being let go from Disney, which he had strongly identified with over the years. He had been accepted into University of Central Florida where he was to study stage management. He had been unemployed (but not retired) less than one year after being laid off. A psychiatric summary showed there was no total occupational and social impairment. His mental disorder signs and symptoms did not result in deficiencies in judgment, thinking, family relations, work, mood, or school. There was also no reduced reliability and productivity due to the symptoms. There was, however, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and normal conversation). It was noted that the Veteran could isolate and avoid social contacts when stressed or feeling depressed. His loss of employment impacted his self-esteem. He feared rejection and avoided commitment. A July 2009 VA examination report shows that the Veteran had chronic persistent tenderness secondary to bilateral pes planus. Until a month prior, the Veteran had been required by his job to walk several miles and stand for several hours on a daily basis. This had exacerbated his foot pain. Further, the Veteran had continual symptoms of daily back pain that worsened by sudden movement or heavy lifting. His job had required him to walk several miles a day on a daily basis and stand for several hours as well. Since the July 2009 VA examiner did not opine on the rest of the Veteran's service-connected disabilities, the Board remanded the claim in February 2011. The Veteran was afforded another VA examination in September 2012. As for pes planus, there was pain on use bilaterally, but not on manipulation of the feet. There was indication of swelling on use. There were no characteristic calluses. Symptoms were not relieved by arch supports. There was no extreme tenderness of plantar surface. There was decreased longitudinal arch height on weight-bearing. There was no evidence of marked deformity or marked pronation of the foot. Weight-bearing line fell over/medial to the great toe. There was no "inward" bowing of the Achilles' tendon, and there was no marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran did not use any assistive device. The VA examiner stated that there was discomfort in the feet with jobs requiring lengthy periods of standing or walking. However, there was no functional impact or limitations for sedentary jobs. As for the thoracolumbar spine, there were flare-ups once or twice a year that would cause the Veteran to have to lay down for several hours up to a day or so. At other times, bending or twisting would cause him to "lock up." Range of motion was from 0 to 75 degrees with no objective evidence of painful motion. Left lateral flexion was to 10 degrees and right lateral flexion was to 15 degrees. Bilateral lateral rotation was to 15 degrees. There was no objective evidence of painful motion bilaterally. The Veteran was able to perform repetitive-use testing with three repetitions. There was no additional limitation in range of motion following repetitive use. There was no functional loss and/or functional impairment of the thoracolumbar spine. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. There was also no guarding or muscle spasm. There was no radiculopathy or neurologic abnormalities. The Veteran did not use an assistive device. It was noted that standing for long periods of time was difficult (but not impossible) due to lumbar pain. Nevertheless, the VA examiner found it possible for the Veteran to perform tasks requiring standing or walking as long as he was able to take intermittent breaks. The VA examiner noted that there was no limitation to employability for more sedentary jobs such as office jobs. As for shin splints, the Veteran reported whenever he ran or walked too fast, he felt a burning sensation on both legs, which came and went depending on the type of activity. When he had flare-ups, both legs became hot and tight. He felt severe pain that throbbed and radiated out when walking fast or running. The VA examiner acknowledged that the Veteran was unable to run or walk fast. He further noted that the Veteran had not required orthopedic or other care for shin splints. He stated that the shin splints did not impact his ability to work in either sedentary or physical labor. At the time, the claims file was not available for review. In January 2013 and February 2013 addendum opinions, two VA examiners reviewed the Veteran's claims file and stated that the Veteran's shin splints did not preclude him from obtaining and maintaining gainful employment based on diagnosis and current objective findings. In a January 2013 addendum opinion, the VA examiner opined that the Veteran's bipolar II disorder (previously referred to as cyclothymic disorder), while a contributing factor to the Veteran's social and occupational dysfunction, did not currently rise to the level of severity as to render him unemployable. The Veteran attributed his occupational problems to difficulty with interpersonal interactions and he further expressed interest in a number of areas requiring additional training. The VA examiner additionally noted that the Veteran was not receiving any mental health treatment. She stated that if the Veteran commited to and participated in consistent mental health treatment, explored/followed-up with training opportunities in desired areas of focus, and pursued employment in positions requiring minimal interpersonal interaction, he might experience greater success at maintaining gainful employment. Although the Veteran's service-connected disabilities do place some restrictions on the types of employment he may be capable of (those that require standing and walking for prolonged periods and those that require a lot of interpersonal interaction), the evidence does not show impairment due to service-connected disability which would preclude sedentary types of employment or employment which involved only minimal interpersonal interaction. The VA medical opinions discussed above include detailed and persuasive opinions which simply argue against the Veteran's claim, and there are no medical opinions to the contrary. While the Veteran and his wife are competent to describe the Veteran's symptoms, they are not competent to render a medical opinion regarding unemployability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A TDIU rating is not warranted. The appeal is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs