Citation Nr: 1317168 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 05-04 743 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from January 1952 to January 1956. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision by the RO. The Veteran testified in support of this claim during a hearing held before a Rating Service Officer at the RO in May 2005. In September 2008, December 2010 and June 2012, the Board remanded the Veteran's claim for additional development of the record. In September 2012 decision, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in January 2013, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary because the Board provided inadequate reasons and bases for its decision. In a January 2013 Order, the Court vacated the Board's September 2012 decision and remanded the matter for readjudication in light of the Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with educational and occupational background. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). II. Duties to notify and assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that a TDIU rating is being granted. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the benefit sought on appeal. II. Law and Regulations Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service- connected disability or unemployability) & Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). III. The January 2013 Joint Motion As discussed, in the January 2013 Joint Motion, the parties stated that the reasons and bases provided by the Board in the September 2012 decision were inadequate. Specifically, the parties stated that the Board did not discuss the Veteran's education history or work experience in relation to his service-connected disabilities when it denied his claim for a TDIU rating. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis of the Veteran's claim is undertaken with that obligation in mind. IV. Analysis The Veteran has been granted service connection for varicose veins (40 percent disabling); pulmonary emboli associated with varicose veins (30 percent disabling); and post-operative residuals pilonidal cyst (no percent disabling). The combined evaluation for his service-connected disabilities is 60 percent. Since the Veteran's disabilities stem from a common etiology, the Board will consider them as one disability. See 38 C.F.R. § 4.16(a)(4). Hence, the Veteran has satisfied the schedular criteria for a TDIU rating. The evidence of record indicates that the Veteran has a 12th grade education and has completed one year of college. See an April 1996 VA-Form 21-8940. He also received on-the-job training at a funeral home from February 1955 to December 1956. See an August 1969 General Information Request. The record reflects that the Veteran worked as a chef from 1974 until 1984. See a July 1982 VA examination; see also an October 1998 VA Form 21-8940. During a private vocational assessment, the Veteran reported stopped work because "he was having increased difficulty standing and walking." In the now-vacated September 2012 decision, the Board noted that the record included several opinions which addressed the Veteran's employability but were inadequate because they either did not provide rationale for their conclusions and were thus not probative, or they considered the Veteran's nonservice-connected disabilities as well as his service-connected disabilities in determining his employability. As a result, the Board sought a VHA medical opinion in connection with the claim. In August 2010, a VA Chief of Cardiology indicated that he had reviewed the claims file, cited the pertinent medical history since 1987, and concluded that the service-connected disabilities, alone, were not of such severity as to cause the Veteran to be unable to obtain or maintain substantially gainful employment. The VA reviewer noted that there was no evidence that the late complications from the pulmonary embolism limited the Veteran's employment. He also noted that chronic venous insufficiency, which caused the Veteran's varicose veins, could cause pulmonary complications, including pulmonary embolisms, chronic ulceration, pain and swelling of the legs. The VHA examiner explained that pain and swelling were especially likely in occupations like the Veteran's, which required prolonged standing, and that, in 1987, due to prolonged standing, the Veteran's venous incompetence was sufficiently severe as to preclude him from working as an executive chef. The expert found, however, that that there was insufficient evidence of record to establish that the degree of incompetence was of such severity as to preclude all gainful employment. The VA expert indicated that the then current social security listing for disability based on chronic venous incompetence required either involvement of 2/3 of the leg below the knee with brawny edema, or recurrent or persistent ulceration, which was not evident in the Veteran's case by the time he had already stopped working. Following the Joint Motion for Remand, the Veteran submitted a March 2013 private vocational assessment from D.P., a certified rehabilitation counselor and certified disability management specialist. After reviewing the Veteran's claims file and interviewing the Veteran, D.P. observed that the Veteran was having difficulty standing and walking as early as 1972. It was also noted that the record demonstrated a consistent and steady worsening of symptoms related to the service-connected varicose veins and pulmonary embolism to the point where the Veteran required the use of a wheelchair to assist with ambulation in July 2004. In his opinion, D.P. stated that the VHA examiner "failed to consider" the "paramount question of . . . whether [the Veteran] [was] qualified for, and could obtain and retain substantially gainful employment where he would require the assistance of a wheelchair for ambulation." In his assessment, based on the need for a wheelchair, D.P. stated that the Veteran would be limited to sedentary employment. However, taking into account his education and work history, he opined that the Veteran [did] not possess the transferable skills to qualify him to obtain this type of work. As a result, D.P. reported that "it [was] at least as likely as not that [the Veteran's] service-connected impairment of varicose veins and pulmonary embolism ha[d] prevented him from securing and following a substantially gainful occupation since at least July 2004." Based on the foregoing, there appears to be presented a reasonable doubt as to whether the Veteran is prevented from securing and following any form of substantially gainful employment due to his service-connected disabilities given his educational and work experience. To the extent that there is a reasonable doubt, it will be resolved in the Veteran's favor. Therefore, on this current record, the Board finds that a TDIU rating is warranted. ORDER Entitlement to a TDIU rating is granted, subject to the regulations governing the award of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs