Citation Nr: 1318035 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-20 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to the appellant's service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service in the United States Army from February 1968 to February 1988. This claim comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2010, February 2011, and again in April 2012, the Board remanded the claim to the RO via the Appeals Management Center (AMC), in Washington, Diagnostic Code, to accomplish additional development. Upon reviewing the development that has occurred since April 2012, the Board finds there has been substantial compliance with its remand instructions with respect to the issue involving entitlement to a TDIU. The Board notes that the United States Court of Appeals for Veterans Claims, hereinafter the Court, has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall [v. West, 11 Vet. App. 268, 271 (1998)] violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the appellant underwent multiple medical examinations concerning his employability, and those examinations have been included in the claims folder. Also, the record reveals that since 2010 the AMC has obtained the appellant's medical records and Social Security Administration documents that were not previously of record. The AMC subsequently issued a Supplemental Statement of the Case (SSOC) in April 2013 after reviewing the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's April 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). FINDINGS OF FACT 1. The appellant is service-connected for postoperative residuals of a left ankle sprain, rated at 30 percent; tinnitus, rated as 10 percent disabling; a head injury with scar, rated as 10 percent disabling; residuals of a right clavicle contusion, rated as 10 percent disabling; chondromalacia of the left knee with history of strain and stress fracture of the left fibula, rated as 10 percent disabling; scars of the left ankle, rated as 10 percent disabling; and noncompensable ratings assigned for the residuals of a fracture of the left ring finger and bilateral high frequency hearing loss. The appellant's combined disability rating is 60 percent. 2. The evidence of record indicates that the appellant has four years of college and has on-the-job training. 3. The evidence fails to show that the appellant's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant claims that he is unemployable and that he cannot work because of his various service-connected disabilities and disorders. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). A review of the claims folder indicates that as a result of the Board's remand instructions in its Decision/Remand of January 2010, the AMC sent to the appellant in April 2010 a TDIU-specific VCAA letter. A review of that letter indicates that it fully satisfied the duty to notify provisions. The letter informed him of the evidence that was required to substantiate the claim for a TDIU and of his, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Although such notice post-dated the adverse determination on appeal, such timing defect is here cured by the corrected notice, which was followed by a readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Therefore, no further development is required with respect to the duty to notify. VA has also fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated, and those other records that the VA was made aware thereof. VA has also obtained all of his Social Security Administration records and they too have been forwarded to the Board for review. Given the foregoing, the Board finds that VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. §5103A(d) (West 2002 & Supp. 2012). In this instance, the appellant underwent numerous medical examinations in February and April 2013 in order to determine whether his service-connected disabilities prevented him from obtaining and maintaining gainful employment. The results of those examinations have been included in the claims folder. These reports involved a review of the claims folder by the requisite examiner and the results of actual testing of the appellant. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellant was given notice that VA would help him obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant has proffered documents and statements in support of his claim. It seems clear that VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and VA has obtained all known documents that would substantiate the appellant's assertions. In this case, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Here, the appellant is not prejudiced by the Board's consideration of his claim as VA has already met all notice and duty to assist obligations to the appellant under the VCAA. In essence, the appellant in this case has been notified as to the laws and regulations governing TDIU claims. He has been advised of the evidence considered in connection with his appeal and what information VA and the appellant would provide. He has been told what the VA would do to assist him with his claim and the VA has obtained all documents it has notice thereof that would assist in the adjudication of the appellant's claim. Thus, the Board finds that there has been no prejudice to the appellant that would warrant further notification or development. As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, at 393 (1993). II. Laws, Regulations, and Discussion The appellant has requested a total disability evaluation based on individual unemployability due to his service-connected disabilities. He is service-connected for postoperative residuals of a left ankle sprain, rated at 30 percent; tinnitus, rated as 10 percent disabling; a head injury with scar, rated as 10 percent disabling; chondromalacia of the left knee with history of strain and stress fracture of the left fibula, rated as 10 percent disabling; scars of the left ankle, rated as 10 percent disabling; and noncompensable ratings assigned for the residuals of a fracture of the left ring finger and bilateral high frequency hearing loss. The appellant's combined disability rating is 60 percent. The appellant contends that he is unable to maintain substantially gainful employment mainly as a result of the symptoms and manifestations produced by his service-connected disabilities. He has stated that while in the past he may have been able to work in an office using a computer or typewriter, he cannot do so now because he suffers from carpal tunnel syndrome (a condition that is not service-related). In a December 2007 statement, he attributed his inability to work to his feet, noting that he was "basically forced to retire" due to foot symptoms. A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service member's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19 (2012). Factors to be considered are the appellant's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 32, 332 (1991). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2) (2012), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § 4.16(a) (2012), provide for a TDIU when, due to service-connected disability (ies), a service member is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined disability rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the appellant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). A TDIU presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a service member's employability, the Board cannot overlook the level of education he completed, his professional training and employment history. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Employment is that "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). Generally, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Pursuant to 38 C.F.R. § 4.16(b) (2012), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a) (2012), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). In the present case, the appellant does not meet the threshold for schedular consideration since the appellant has been assigned a 40 percent disability rating for any of disabilities even though his combined disability rating is 70 percent. (The record shows that the highest disability rating for one disability that has been assigned is a 30 percent rating for the postoperative residuals of a left ankle sprain.) The record reflects that the appellant has completed two years of college, and previously worked as a correctional department deputy for the Travis Country Sheriff's Department. He worked for fourteen years as a corrections department deputy until he retired from that position on November 30, 2007. The record does not indicate that since retiring from service that he has obtained any additional training in another field of work. The appellant has written that he left his most recent job as a correctional department deputy because he could no longer meet the physical requirements of the job due to his left ankle disability. As noted above, the appellant underwent a number of VA medical examinations over the course of this appeal. The most recent examinations occurred in the spring of 2013. These examinations including the testing of his bilateral hearing loss, along with examinations of his other service-connected disorders, including the left ankle disability. Prior to the examinations, the examiners testing and examining the appellant reviewed the appellant's claims folder. During the examination, the examiner noted each of the appellant's service-connected disabilities and upon the conclusion of the multi-tiered examination, provided an opinion concerning the appellant's employability. The examiners specifically stated that the appellant could engage in fully gainful employment. While the examiner who evaluated the appellant's orthopedic conditions indicated that the appellant would not be able to perform some physical forms of employment, the examiner also did not limit the types of sedentary jobs that the appellant could undertake. None of the examiners concluded that the appellant was unable to obtain and maintain some type of employment commensurate with his training and experience. Also as reported above, the appellant's medical treatment records have been obtained and included in the claims folder for review. None of these records contain a recommendation from a health care provider that the appellant not seek employment. None of the records endorse the appellant's contentions that he is unable to work. The Board acknowledges that the appellant has been awarded Social Security Administration (SSA) benefits. Per the SSA records, the appellant was awarded disability benefits effective September 12, 2007. The disabilities for which the appellant is in receipt of benefits include fractures of the lower limb and essential hypertension. No other disabilities and disorders, including those that have been found to be service-related, were reported as disabling. From the obtained SSA records, it is clear that the two noted disabilities were disabling and prevented him from being employed as a corrections officer or deputy. However, those same records did not indicate or suggest that the appellant could not obtain a different type of employment that was not physically taxing. The Board further points out that while the appellant's left ankle disability was considered as supporting the SSA determination, the remaining service-connected disabilities were not. Furthermore, the TDIU claim is a claim for increase so the current reports directed to employability are given precedence over remote SSA records whereas here the current reports are adequate and relevant to the rating issue. The Board has not ignored the SSA determination and has accepted the SSA conclusions. Nevertheless, the Board has explained the reasons for not accepting the SSA conclusions as determinative in this case. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (citing Collier v. Derwinski, 1 Vet. App. 413, 417 (1991)). It is noted that there are no other private or governmental medical opinions contained in the medical records that would support the appellant's assertions that he is unable to work as a result of his service-connected disabilities. There are only the statements provided by the appellant himself. The appellant's physical problems, symptoms, and manifestations, which are referenced in the VA records, undoubtedly compromise the range of jobs available to him at some exertional levels. Yet, none of the various VA medical care providers have opined that the appellant's service-connected disabilities preclude employability. In fact, the most recent medical examinations, without reservation, found that the appellant was employable. Moreover, the medical treatment records, along with the recent VA examination reports, indicate that the service-connected disabilities are stable and well-controlled, and do not appear to require additional or extraordinary care that would prevent the appellant from working at a desk job. Here, although the appellant contends that his service-connected disabilities render him unemployable, the objective evidence indicates otherwise. Moreover, the Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for an appellant to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm. See also 38 C.F.R. §§ 4.1, 4.15 (2012). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating that has been assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether he can find employment. The determinative medical evidence as discussed herein fails to demonstrate that the appellant is unemployable solely due to his service-connected disabilities. Viewed objectively, it preponderates against the claim. Thus, an award of TDIU is not warranted here. Finally, the RO/AMC has not submitted the appellant's case to the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. In this case, the evidence does not require such action. A clear preponderance of the evidence is against a finding that the appellant is unable to follow a substantially gainful occupation by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2012). Because the evidence does not show that service-connected disabilities render him unemployable, there is no basis to support an extraschedular TDIU rating. The benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for a TDIU. See Gilbert, supra. The appellant's claim is denied. ORDER Entitlement to a TDIU due to the appellant's service-connected disabilities is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs