Citation Nr: 1316989 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-02 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 1983. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied TDIU. In August 2009, a hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in November 2009 and March 2011. The issue of TDIU was then denied by the Board in an October 2012 decision. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims, and the Board's decision was vacated pursuant to an Order, following a Joint Motion for Remand. The parties requested that the Court vacate the Board's October 2012 decision regarding the denial of TDIU and remand the matter so that the Board could provide adequate reasons and basis regarding a statement from the Veteran's former employer who related that the Veteran left her employment as a result of numerous disabilities, including service-connected migraine headaches and stomach problems. In February 2013, the Court granted the Joint Motion and remanded the case to the Board. FINDINGS OF FACT 1. Service connection is currently in effect for migraine headaches, rated 50 percent; hysterectomy, rated 30 percent; bilateral plantar fibromatosis, with onychomycosis and mild hallux valgus of the right foot, rated 10 percent; hiatal hernia with gastroesophageal reflux disease (GERD), rated 10 percent; and residuals of a fracture of the right hand, rated 0 percent disabling. The combined disability rating is 70 percent. 2. The Veteran has reported that she had four years of high school education and a year of cosmetology school, with work experience as a barber. 3. The service-connected disabilities, standing alone, are not shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSION OF LAW The requirements for a TDIU have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340. 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In a claim for increase, the notice requirement is generic notice of the type of evidence needed to substantiate the claim, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An October 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for obtaining, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination in connection with her claim, most recently in March 2010. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Where the percentage requirements are not met, entitlement to TDIU may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, with consideration of the Veteran's background, including his employment and educational history. 38 C.F.R. §4.16(b) (2012). The Board does not have the authority to assign an total disability rating for compensation purposes based on individual unemployability pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1(2001). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States 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, included by not limited to employment 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 (2012). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms she perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159 (2012). Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge. Personal knowledge is that which comes to the witness through the use of the senses. Lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness; Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). A veteran, as a layperson, is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). VA must consider the competency of the lay evidence and cannot outright reject lay evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, that does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so. The Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that her service connected disabilities preclude all forms of substantially gainful employment. She asserts that she has not been employed since 1998 as a result of her foot, gastrointestinal, and headache disabilities. A VA physician who has treated the Veteran for several years has rendered an opinion that she is not employable. During testimony before the undersigned at the Board hearing in 2009, the Veteran and her spouse testified that the Veteran was often bed ridden several days per week as a result of her migraines and they believed that she was rendered unemployable as a result of migraines headaches alone. Service connection is currently in effect for migraine headaches, rated 50 percent; hysterectomy, rated 30 percent; bilateral plantar fibromatosis, with onychomycosis and mild hallux valgus of the right foot, rated 10 percent; hiatal hernia with gastroesophageal reflux disease (GERD), rated 10 percent; and residuals of a fracture of the right hand, rated 0 percent. In addition, the Veteran is in receipt of special monthly compensation on account of the loss of use of a creative organ. Her combined service-connected disability rating is 70 percent. In her application for TDIU, the Veteran reported that she had four years of high school education with an additional a year of cosmetology school, and work experience as a barber. She stated that she last worked in 1998. On January 2008 VA examination, the Veteran's right hand fracture residuals were evaluated. The Veteran complained of pain of the right hand, but no fracture site motion, deformity, or joint disease. Range of motion of the right wrist was normal, without pain. Muscle strength of the right upper extremity was 5/5. The Veteran had some paresthesia of the fourth and fifth digits of the right hand and was diagnosed as having right ulnar neuropathy. Service connection has not been established for right ulnar neuropathy. Regarding her migraine headaches, it was noted that those occurred three to four times per month and lasted four to five days at a time. They were often brought on by stress. She used the medication Zolmitriptan with fair response. Current symptoms included prostrating attacks of more than two days duration. The diagnosis was migraine headaches that affected the Veteran's activities of daily living. Sports, chores, exercise, and recreation were prevented. The effects on shopping, traveling, and feeding were considered severe. Bathing, dressing, toileting, and grooming were mildly impaired. In an October 2008 letter, the Veteran's former employer stated that the Veteran had worked at her company from 1992 through 1998, but had to end her tenure due to increasing health problems which included migraine headaches, stomach problems, and the fact that the Veteran had severe back and hip problems that would not allow her to stand for long periods of time, which was required in the barbering business. VA outpatient treatment records show that the Veteran has been treated for multiple disabilities over the years. On several occasions, the treatment records indicate that the Veteran was unable to work as a result of her numerous disabilities. In January 2008, her disabilities were listed as including daytime somnolence; arthritis, primarily of the hands, back, and neck; chronic obstructive pulmonary disease; GERD; irritable bowel syndrome; asthma; bipolar disorder; and chronic low back and neck pain. At that time, the examiner stated that her back and neck problems continued to plague her on a daily basis and rendered her unable to work. A VA examination was conducted pursuant to remand by the Board in March 2010. On evaluation of hiatal hernia with GERD, it was noted that the Veteran had had an insidious onset of the disorder during service that had progressively worsened. She was treated with medication with no side effects. Complaints included daily nausea after any meal and daily heartburn. There was no history of vomiting, regurgitation, hematemesis, melena, or need for esophageal dilation or hospitalization. Examination showed no signs of anemia, significant weight loss or malnutrition. Examination of the Veteran's right hand showed no limitation of motion of any of the fingers or the thumb. X-ray studies of the right hand showed no evidence of fracture, dislocation or significant degenerative disease. The examiner stated that the Veteran's right hand fracture was not shown to interfere with her usual daily activities. On evaluation of the Veteran's migraine headache disability in March 2010, it was noted that the Veteran took medication for treatment of her migraines, with good response, without side effects. It was noted that the Veteran had weekly migraine headaches most of which were prostrating and lasted from one to two days. Motor, sensory, mental status, and reflex examinations were normal. The diagnosis was prostrating migraine headaches. On examination of the Veteran's foot disorder, it was noted that the Veteran had a poor response to current treatment, which only partially relieved her symptoms. She had been treated with corticosteroid injections in the feet. Complaints included heat, redness, pain, swelling, stiffness, and fatigability. These were reported to be located in the forefoot of each foot. She was able to stand for only 15 to 30 minutes and to walk for one quarter mile. She used a walker and orthotics, with fair success. On examination, there was no evidence of swelling, instability, or weakness of either foot. There was evidence of painful motion, tenderness, and abnormal weight bearing. There was pain with any motion and tenderness in the metatarsal heads of each foot and in the medial eminence of the left foot. Callosities were noted on each foot. Hammertoes were noted on the second and third toes of the left foot. There was mild angulation with a mild prominent bunion of the left foot and very mild hallux valgus angulation of the right foot. Neither foot showed any skin or vascular foot abnormality, pes cavus, flat foot, muscle atrophy, or malunion of the tarsal, or metatarsal bones. Onychomycosis of multiple toes of the left foot was noted. Poor propulsion was noted in the Veteran's gait. X-ray studies of the right foot showed moderate degenerative changes and mild hallux valgus noted at the first metacarpophalangeal joint. There was "small Achilles calcaneal views of item plantar calcaneal spur" noted. Studies of the left foot showed slight degenerative change at the first metacarpophalangeal joint with "small Achilles calcaneal enthesophyte and plantar calcaneal spur" noted. The diagnoses were plantar fibromatosis, hallux valgus, onychomycosis, second and third hammertoes on the left, and bilateral plantar keratoses. Those disabilities had an effect on daily activities with moderate effect on chores, shopping, and exercise; severe effect of sports; mild effect on recreation and traveling; and no effect on feeding, bathing, dressing, toileting, grooming, or driving. The examiner stated that the Veteran's disabilities of chronic obstruction pulmonary disease (COPD), feet, and headaches had caused her to stop working as a hairdresser in 1998. The examiner noted that the Veteran's service-connected disabilities included her migraines, GERD, and bilateral foot disabilities and that she had nonservice-disabilities of oxygen dependent COPD and low back pain that required medication. The examiner opined that it was impossible to state that the Veteran was unemployable because of her service-connected disabilities, but from her history she stated that her migraines, feet, and GERD made her stop working as a hairdresser years ago. The examiner did not believe that the GERD was of such severity that it would render someone unemployable and, while migraines can be impairing, given the frequency cited by the Veteran, the examiner felt that she would be employable. The examiner could not find any detectible disability from her hand fracture residuals. The disabilities of her feet would impair someone from having a job that required standing for the entire work day. After considering all of the service-connected disabilities the examiner opined that the Veteran would be employable for sedentary work, but not manual labor. After review of the entire record, the Board finds that the service-connected disabilities, standing alone, are not shown to be of such severity as to effectively preclude all forms of substantially gainful employment. The Board recognizes that there is evidence that the Veteran is not employable, but it is the responsibility of the Board to assess the credibility and weight to be given all of the evidence and to determine whether the Veteran is unemployable solely due to service-connected disability. Hayes v. Brown, 5 Vet. App. 60 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1992)). TDIU may be awarded where the scheduler rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 4.16(a) (2012). It is most important to note that only the Veteran's service-connected disabilities may be considered. While there is evidence from both the Veteran's former employer and the VA treating physician that she is not able to obtain or retain substantially gainful employment, the opinions to that effect have considered non-service-connected low back pain as a contributing factor. The VA physician who evaluated the Veteran in March 2010 seemed to also believe that the Veteran was not employable, but specifically stated that there were major contributions to that unemployability from oxygen dependent COPD and low back pain. Those disabilities may not be considered by the Board because they are not service-connected disabilities. The March 2010 VA examiner has provided the only opinion in the record that specifically addresses the impairments to employability from the service-connected disabilities, as distinguished from nonservice-connected disabilities. The Board finds that opinion to be more probative and it is given greater persuasive weight. Of the Veteran's service-connected disabilities, her migraine headaches and foot disabilities are shown to cause the most interference with employment. There is no demonstrated contribution to unemployability from her hysterectomy residuals, right hand fracture residuals, or, as specifically noted by the VA examiner in March 2010, her GERD, which is not shown to significantly interfere with employability. That examiner opined that the migraines were not of such frequency that unemployability was caused and, while the foot disability would interfere with a job that required the Veteran to constantly stand, sedentary employment was not prevented. The Board finds that examiner's opinion to be the most persuasive evidence in this case and that evidence shows that the Veteran is not precluded from obtaining or maintaining substantially gainful occupation solely by her service-connected disabilities. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must shows some factor which takes the case outside of 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the evidence of record does not show disability that takes the Veteran's case outside the norm. Therefore, the Board finds that the preponderance of the evidence is against the claim and the claim for TDIU must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs