Citation Nr: 1318376 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-28 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to July 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas that denied entitlement to a TDIU. In February 2012, the Veteran's claim was remanded for further development-including a VA examination. The requested action was taken and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering 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). FINDINGS OF FACT 1. The Veteran's service-connected disabilities include coronary artery disease, rated as 60 percent disabling, and degenerative disc disease of the lumbar spine, rated as 10 percent disabling. His combined rating is 60 percent. 2. The Veteran meets the schedular requirements for a TDIU, but his service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS 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, all the evidence submitted by or on behalf of the Veteran. 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 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in January 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced agent and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of TDIU. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Board is aware that the Veteran's agent most recently sent communications to VA in May 2013 indicating that he has "encouraged" the Veteran to apply for Vocational Rehabilitation Service. As the record currently stands, it does not appear that the Veteran has actually applied for Vocational Rehabilitation, nor have the Veteran or his agent indicated that there are any outstanding records with respect to any Vocational Rehabilitation. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. As such, the Board has fulfilled its duty to assist in this matter. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided VA examinations most recently in January 2013. The examiners considered the Veteran's complaints, post-service treatment records, and conducting a physical examination. Based on the foregoing, the examiners concluded that the Veteran's service-connected ischemic heart disease, low back problems, and scars did not prevent him from obtaining and maintaining substantially gainful employment. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for a TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Given the January 2013 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Factual Background and Analysis In this case the Veteran is in receipt of service connection for coronary artery disease, rated as 60 percent disabling, and degenerative disc disease of the lumbar spine, rated as 10 percent disabling. His combined rating is 60 percent. Therefore, the Veteran's service-connected disabilities meet the rating percentage threshold for a TDIU. 38 C.F.R. § 4.16(a). Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16. The Veteran reports that he last worked as a carpenter in 1998 and 1999. He retired due to his back pain and heart problems. Of note, VA sent the Veteran VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in January 2011. The Veteran did not submit a response to this letter. In response to his claim, the Veteran was afforded a VA examination in February 2011, during which the Veteran was diagnosed as having ischemic heart disease with hypertension and hyperlipidemia. The examination report notes an assessment of ischemic heart disease with METS 4-5 and ejection fraction of 50 percent, controlled on continuous medication, and cardiac enlargement. The examiner opined that these problems do not impact his usual occupation. The examiner indicated that the Veteran's heart disability causes a slight limitation of physical activity and there are no symptoms at rest, but moderate physical activity results in cardiac symptoms such as fatigue, dyspnea, etc. The examiner apparently found no effects on the Veteran's usual occupation, as well as no effects on usual daily activities related to this condition. The Veteran was not then currently employed and was not retired. He apparently related that he was unemployed due to his inability to find a job in his chosen profession as a carpenter. The Veteran underwent another VA examination in May 2011, which focused on his service-connected back disability. The examiner confirmed the degenerative disc disease of the lumbar spine diagnosis. The Veteran indicated that he uses a cane for assistance with walking and that he was able to walk greater than 1/4 mile, but less than 1 full mile. The examiner indicated that the Veteran was not currently employed and has been retired since 1999 due to back pain. The examiner opined that the Veteran's back disability caused decreased mobility, problems with lifting/carrying, lack of stamina, and pain with respect to impact on his usual occupation. The examiner also indicated that the Veteran's low back disability impacts his activities of daily living. In a May 2011 addendum, the February 2011 VA examiner indicated that under the diagnosis of ischemic heart disease, the effects on usual occupation should read, "cardiac symptoms of dyspnea and fatigue would impair his ability to do his usual work as a carpenter," rather than note "no effects." In June 2012, the Veteran underwent surgery for placement of a permanent pacemaker. Prior to the surgery, the Veteran reported that he attempts to stay very active. In the Board's February 2012 remand, it found that the February 2011 and May 2011 VA examinations were inadequate for purposes of deciding the Veteran's claim inasmuch as they did not address the broader questions of whether the Veteran's service-connected disabilities alone or in concert, preclude him from securing or following substantially gainful employment. Thus, the claim was remanded for a new VA examination. The Veteran was afforded a comprehensive VA General Medical examination in January 2013, during which the examiner reviewed the severity of the Veteran's service-connected heart (with scar) and back disabilities. Noted was that since his 2011 examinations, the Veteran has received a pacemaker due to black outs. The examiner indicated that the Veteran experiences fatigue at >7-10 METS due to his ischemic heart disease. With respect to his back, he stated that since the last VA examination in May 2011, his low back bothers him at times-especially when he sits for long periods of time. He walks 1-2 miles/week in the summer. Forward flexion is to 90 degrees or greater, even after repetitive testing. Following physical examination, review of the claims file, and interview of the Veteran, the examiner opined that the Veteran's ischemic heart disease and low back disability did not impact his ability to work. In reaching this conclusion, the examiner pointed to the Veteran's report that following a tornado in May 2007, the Veteran was able to rebuild his garage, workshop, and remodeled his house. He denied any dyspnea or chest pains during this remodel/rebuilding, but reported occasionally getting tired. The Veteran reported taking a baby aspirin if he feels chest pain, but could not recall the last time he experienced chest pain. When the examiner asked the Veteran whether he could perform light, moderate, or heavy work without experiencing chest pain, dyspnea, or fatigue, the Veteran responded that yes he could. He denied any cardiac symptoms such as angina or dyspnea while performing his current carpentry work. Regarding employability, the Veteran indicated that if you do not own your own business in this part of Kansas, you cannot get a job. For these reasons, the examiner opined that the Veteran's service-connected ischemic heart disease and degenerative disc disease of the lumbar spine would not preclude employment except for in heavy labor. There is no clinical opinion to the contrary. Having carefully reviewed the medical evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran is precluded from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. In reaching that conclusion the Board notes that there is no competent evidence of record showing that the Veteran's heart and low back disabilities prevent him from obtaining and maintaining substantially gainful employment. As noted above, the Veteran underwent comprehensive VA examinations in January 2013, which addressed his service-connected heart and back disabilities. The examiner opined that the Veteran's back and heart disabilities do not prevent him for obtaining and maintaining employment, except for heavy labor. During the February 2011 examination, the Veteran reported that he was not retired, but could not find work as a carpenter in his city. Additionally, the February 2011 VA examiner, in his May 2011 addendum, opined that the Veteran's cardiac symptoms of dyspnea and fatigue would impair his ability to do his usual work as a carpenter. He did not, however, provide an opinion as to whether he was unable to obtain or maintain other types of gainful employment. In that regard, the Board finds the January 2013 VA medical opinion to be of significant probative value as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The reviewer considered the Veteran's claims file, his contentions, the medical evidence of record, and conducted a complete physical examination, but concluded that the Veteran's heart and back disabilities only impacted his ability to perform heavy labor. Furthermore, a complete and thorough rationale was provided for the opinion rendered. Specifically, the Veteran indicated that he has been able to perform work/tasks around the house and he told the examiner that he would be able to perform labor without experiencing fatigue or chest pain. Further, the Veteran essentially indicated that it is hard to find employment in his city because he does not own a business. Here, the overwhelming medical evidence of record does not show that the Veteran is unemployable due to his service-connected disabilities. In closing, the Board does not doubt that the Veteran's service-connected disabilities have some impact on his employability. However, the 60 percent schedular evaluation currently in effect recognizes significant industrial impairment resulting from his disorders. Nevertheless, for the reasons and bases set forth above, the preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs