Citation Nr: 1317201 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 05-36 819A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran had active honorable service from June 1979 to June 1982. The Veteran's service from June 1982 to September 1983 has been determined to be a bar to benefits administered by the VA. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Houston, Texas. In January 2010, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In June 2011, the Board adjudicated two claims, and also determined that the record could reasonably be construed to include a request for a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for entitlement to a TDIU was therefore added to the appeal, and was remanded for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. FINDING OF FACT The Veteran's service-connected disabilities have not rendered him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19, 4.26 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO/AMC did not send a standard VCAA letter explaining how to establish entitlement to a TDIU after the Board's October 2012 remand, which added the issue to the appeal. However, a November 2012 letter did inform him that he may be entitled to a total rating if he was unable to secure and follow a substantially gainful occupation due to service-connected disabilities. The letter requested employment information, and afforded the Veteran the opportunity to submit any evidence in this regard. The Veteran's December 2012 response to this letter reflects that he understood that in order to establish entitlement to a TDIU, he had to show that his service connected disabilities rendered him unemployable. Consequently, any error in this regard was non-prejudicial. See 38 C.F.R. § 19.9(a)(1) (remand required only when further action "is essential for a proper appellate decision"). Cf. 38 U.S.C.A. § 7261(b)(2) (West 2002) (Court must take due account of the rule of prejudicial error); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative). The Board also notes that the Veteran has not been provided notice regarding VA's assignment of disability ratings and effective dates for the TDIU claim on appeal. However, the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the claim, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. For all of these reasons, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He was afforded a personal hearing before the RO, and before the Board. During the Board hearing, the undersigned Veterans Law Judge clarified the issues, addressed manifestations, identified a potential evidentiary defect and left the file open for the submission of additional evidence. Such actions supplement VCAA and comply with any duty owed during a hearing. The Veteran has also been afforded a VA examination for the claim on appeal. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its October 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ afforded the Veteran the opportunity to submit additional pertinent evidence, and provided him a sufficient VA examination determining the impact of his service-connected disabilities on his employability. For the foregoing reasons, the Board concludes that all reasonable efforts have been made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). However, a threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran here is in receipt of service connection for chronic prostatitis with urinary frequency/nocturia, rated 40 percent, and left varicocele with high ligation left spermatic cord, rated 0 percent. Thus, the Veteran does not meet the schedular requirements for a TDIU. However, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service- connected disabilities "shall be rated totally disabled." See 38 C.F.R. § 4.16(b). Significantly, the Court has held that the Board has no power to award a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). While the Board does not have the power to award a TDIU on an extraschedular basis in the first instance in the absence of a referral to VA's Director of Compensation and Pension, and there was no such referral in this case, the Board will consider whether a remand for such referral is warranted. The Veteran is not prejudiced by such consideration because the RO considered an extraschedular TDIU in its February 2013 supplemental statement of the case. The Veteran contends he cannot work because he is sick all of the time with nausea and pain from his service-connected medical problems. See, e.g., April 2004 statement. At the January 2010 hearing, he testified that he lost his last job because he was out sick too much for medical appointments. Hearing Transcript, pp. 6-7. Of record is a May 2003 Written Counseling on Excessive Sick Leave from the Veteran's then-employer. On VA examination in February 2013, the Veteran reported that he is unemployed because when he reports his problems with the prostatitis and varicocele on employment applications, employers do not want to hire him. The Veteran is competent to testify as to the effect of his chronic prostatitis and left varicocele on his employability, and his testimony is credible in this regard. However, there is also a medical opinion addressing the effect that his service- connected disabilities have on his employability. On VA examination in February 2013, the examiner determined that the Veteran is able to perform all activities of daily living without assistance, but that he may have difficulty in ambulation or squatting due to the size of the hydrocele. The examiner reviewed the entire record, and found that the resolved prostatitis, hydrocele, and varicocele combined may cause the Veteran to have difficulty with jobs that require walking or standing for prolonged periods, frequent squatting or kneeling, or frequent walking up or down stairs or inclines. However, the examiner found that the Veteran would be able to perform an occupation, either physical or sedentary, that would allow for him to stand and/or sit at will in the performance of the duties. The above evidence reflects that the weight of the evidence is against a TDIU as it indicates that the Veteran's service- connected disabilities do not produce unemployability. This medical opinion, which contains an explanation of the reasons for the conclusion based on an accurate review of the pertinent evidence, is entitled to significant probative weight and the examination is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). See also Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-25 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions; a medical opinion is considered adequate where it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability, in sufficient detail to allow the Board's evaluation to be a fully informed one). The probative value of this medical opinion is greater than that of the Veteran's general lay statements. There is no other evidence, aside from the Veteran's lay statements, to support that his service-connected disabilities render him unable to obtain and retain substantially gainful employment. The record contains general medical literature concerning genitourinary conditions, as well as an April 2004 lay statement from the Veteran's wife concerning a back injury and back surgery, but these lend no support to the claim. On this record, the Board finds that no basis exists to warrant referral of the claim to the Director, Compensation and Pension Service for extraschedular consideration. Bowling, 15 Vet. App. 1 (2001). The preponderance of the evidence is against the claim for a TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). ORDER Entitlement to a TDIU is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs