Citation Nr: 1318350 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-39 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 9, 1980 to April 3, 1980, from December 7, 1990, to April 19, 1991, and from May 23, 1992, to June 6, 1992. The Veteran also had service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied entitlement to individual unemployability. The Veteran filed a Notice of Disagreement (NOD) dated in July 2007 and the RO issued a Statement of the Case (SOC) dated in November 2007. The Veteran filed a Substantive Appeal in December 2007. In August 2009, the Veteran and his friend, accompanied by the Veteran's representative, testified at a hearing before the undersigned at the local RO. A transcript of these proceedings has been associated with the Veteran's claims file. In February 2011 and March 2013, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. The Veteran's Virtual VA claims file, in addition to the paper claims file, was reviewed in preparing this decision. 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 Veteran's service-connected disabilities are not shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU 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 The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (determining that 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 Veteran must 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) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Notice and Assistance With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Here, a letter from the RO dated in April 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his TDIU claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided prior to the initial RO adjudication of the TDIU claim in the July 2007 rating decision. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed for his TDIU claim. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claim. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs), Social Security Administration (SSA) disability benefits records, and VA medical records are in the claims file. Private medical records identified by the Veteran have also been obtained, to the extent possible. For the foregoing reasons, the Board concludes that all reasonable efforts were 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. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Here, the RO and AMC provided the Veteran with appropriate and pertinent VA examinations and medical opinions in May 2007, June 2009, March 2011, April 2012, May 2012, and March 2013. These examination reports have been included in the claims file for review. The examinations involved reviews of the claims file, thorough examinations of the Veteran, and medical opinions that were supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (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). There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The recent VA examination reports are thorough and supported by the treatment records. The examinations are adequate upon which to base a decision. See again Barr, 21 Vet. App. at 311. 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 Veteran's claim. Furthermore, the Veteran was afforded a Board hearing in August 2009. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). During the 2009 hearing, the issue of entitlement to a total disability rating based on individual unemployability was specifically noted and the development (adequate medical opinion) necessary to substantiate the claim was ordered by the Board. Thus, if error found, the Veteran was not prejudiced. See Bryant, 23 Vet. App. at 498-99 ("[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit. Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled."). The Board is also satisfied as to substantial compliance with its February 2011 and March 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the Veteran's VA and private records, which were obtained by the AMC and incorporated into the Veteran's claims file. This also included scheduling the Veteran for additional VA examinations and medical opinions - which he had in March 2011, April 2012, May 2012, and March 2013. The AMC also readjudicated his claim in the July 2012 and April 2013 Supplemental Statements of the Case (SSOCs). Thus, the Board finds that there has been substantial compliance with the Board's remands. Id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim, such that the essential fairness of the adjudication is not affected. II. Analysis Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability 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). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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 the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012). In this case, the Veteran is currently service-connected for atherosclerotic coronary artery disease with mild aortic insufficiency, status post myocardial infarction and hypertension (coronary artery disease), evaluated as 60 percent disabling, tinnitus, evaluated as 10 percent disabling, and bilateral hearing loss, evaluated as 10 percent disabling. By way of application of the combined ratings table, the Veteran's combined rating is 70 percent. 38 C.F.R. § 4.25 (2012). Thus, the Veteran meets the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16(a). The Board must now consider whether the competent evidence otherwise demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that the Veteran's service-connected disabilities do not render him unable to obtain or maintain substantially gainful employment. Initially, the Board notes that the Veteran is currently unemployed. He alleges that his service-connected heart disability prevents him from obtaining gainful employment. At his Board hearing, he testified that he was let go from his most recent job because of his service-connected heart disability, and that his doctors have told him that he could not work due to his health. In a May 2007 statement, the Veteran indicated that he last worked in the area of labor in 1992, and that he was currently unable to work due to his heart. In this regard, since filing his claim in April 2007, the Veteran was afforded a VA heart examination in May 2007. However, the VA examiner did not provide an opinion regarding the Veteran's employability. The Veteran was provided additional VA examinations dated in June 2009. The VA examiners examined the Veteran and reviewed the claims file. The Veteran's audiological examiner found that the Veteran's hearing loss would be expected to have minimal impact on employability, and that his tinnitus did not preclude employment. The heart examiner indicated that the Veteran could engage in activities of daily living without restriction. He was noted to have shortness of breath at all times and to wear nasal oxygen as a result of severe chronic obstructive pulmonary disease. The Veteran was noted to have not worked on a regular schedule since the 1990s. The heart examiner stated that he was unable to define any disabilities related to the Veteran's heart that would interfere with his ability to perform his usual employment. His major disability was indicated to be shortness of breath related to his non-service-connected severe chronic obstructive pulmonary disease (COPD). The Board notes that the June 2009 VA examiners commented only on the effect that the individual service-connected disabilities at issue may have on the Veteran's employment, rather than whether all of his service-connected disabilities together render the Veteran incapable of performing the physical and mental acts required by employment. Thus, the Board remanded the appeal so that the Veteran could be afforded an additional VA examination in order to determine whether he is currently unemployable due to his service-connected disabilities. The Veteran was afforded VA examinations and medical opinions in March 2011, April 2012, and May 2012. The VA examiners examined the Veteran and reviewed the claims file. Specifically, the March 2011 examiner found that, based strictly on the Veteran's cardiac status, there were no abnormalities that would prevent the Veteran from performing his usual employment. From a cardiac standpoint, the examiner determined that the Veteran should be able to perform sedentary type work and light physical work. The examiner reasoned that the Veteran was able to engage in his activities of daily living with minor restrictions, to include bathing, feeding, voiding, and dressing. The examiner pointed out that the Veteran was able to drive an automobile to a limited extent. The examiner also reasoned that the Veteran's recent chest X-ray did not show any cardiomegaly or congestive changes; instead, the Veteran had findings compatible with COPD. The examiner stated that the Veteran was unable to walk on a treadmill due to shortness of breath related to his non-service-connected COPD. The April 2012 examiner determined that the Veteran's hearing loss would not preclude employment, as hearing impaired people can be employed. However, the examiner found that due to the severity of the Veteran's hearing loss, he might have some significant difficulty understanding speech in noisy situations. The April 2012 examiner also added that the Veteran's tinnitus does not preclude employment. The May 2012 examiner determined that the Veteran's coronary artery disease should not prevent him from working at a sedentary or light duty job, but would more likely than not prevent heavy duty work. The examiner noted that the Veteran has severe COPD that requires continuous oxygen supplementation with an FEV1 of less than one liter. The examiner found that the COPD prevents the Veteran from working at all, but the COPD is not related or caused by his service-connected ischemic heart disease. The Board again notes that the March 2011, April 2012, and May 2012 VA examiners commented only on the effect that the individual service-connected disabilities at issue may have on the Veteran's employment, rather than whether all of his service-connected disabilities together render the Veteran incapable of performing the physical and mental acts required by employment. Thus, the Board again remanded the Veteran's appeal for an addendum VA medical opinion. The Veteran was afforded an addendum VA medical opinion in March 2013 by the examiner who examined him in March 2011 and May 2012. Following another review of the claims file, the March 2013 VA examiner determined that the Veteran's service-connected disabilities do not individually or collectively create a functional impairment that would prevent the Veteran from securing and maintaining substantially gainful employment. The March 2013 VA examiner reasoned that the Veteran's service-connected heart disability does not create functional impairment because his blood pressure is well-controlled with no secondary complications. Additionally, the examiner pointed out that the Veteran's mild aortic insufficiency is not clinically significant based on the March 2011 echocardiogram (ECHO) findings of normally functioning valve and normal left ventrical function. The examiner stated that the Veteran's coronary artery disease and prior myocardial infarction have not caused any significant impairment in the Veteran's left ventricle function that would preclude any work except for heavy physical exercise. The examiner pointed out that the Veteran previously worked as a store clerk and file clerk, per the Veteran's history at his examination. The examiner found that being a clerk is not heavy duty, so the Veteran would be able to functionally perform work on this level. The March 2013 VA examiner also reasoned that, based on the audiological findings and opinions from the VA examinations, the Veteran's hearing loss and tinnitus would not create a functional impairment that would prevent the Veteran from securing and maintaining substantially gainful employment. These VA examiners, following a complete interview with the Veteran, determined that the Veteran's service-connected disabilities interfere with his ability to work, but do not render him unemployable. Instead, the examiner found that the Veteran's non-service-connected COPD prevents his employability. Again, his non-service-connected disorders and advancing age may not be considered in determining his eligibility for a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose, 4 Vet. App. at 361. There are no medical opinions to the contrary in the claims file, and the treatment records do not provide contrary evidence. To date, no physicians (VA or private) have determined that the Veteran is unemployable due to his service-connected disabilities. In short, the Veteran's service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment consistent with his educational and vocational experiences. In reaching the above determination, the Board has considered the Veteran's lay statements as to the nature and severity of the Veteran's service-connected symptomatology. The Veteran is certainly competent to describe his current symptoms (see Layno v. Brown, 6 Vet. App. 465, 470 (1994) and he is credible in his belief that he is unemployable due to service connected disabilities. The lay evidence, however, is outweighed by the medical evidence. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the severity of the service-connected disabilities prevent the Veteran's employability, this issue falls outside the realm of common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). The medical professionals, in their expert opinion, find that the Veteran is not in fact unemployable on account of service-connected disability. Accordingly, the Board finds that the evidence is not in equipoise on the matter of whether the Veteran is unemployable due to his service-connected disabilities. The benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b). The TDIU claim is denied. ORDER Entitlement to a TDIU rating is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs