Citation Nr: 1318587 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-27 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant served on active duty from November 1964 to January 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include: residuals of right foot injury with postoperative scar and arthritis, rated 30 percent; right total knee arthroplasty, rated 30 percent; and right thigh scar, rated 10 percent; the combined rating for his service connected disabilities is 60 percent. 2. The Veteran's service-connected disabilities are not reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The schedular criteria for TDIU are met; however, a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to an increased rating claim like TDIU, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of this claim prior to the initial, July 2008, adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An October 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also provided notice regarding ratings and effective dates of awards. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the claims files. His Virtual VA file has also been reviewed. He has not identified any pertinent evidence that is outstanding. VA examinations and medical opinions were provided in January 2008 (with addendum in June 2008) and February 2012, addressing the TDIU claim. The Board finds these examinations and medical opinions, taken together, are adequate for rating purposes, as the examiners expressed familiarity with pertinent medical history, and conducted thorough medical examinations, noting all findings necessary for consideration of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran's employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's residuals of right foot injury with postoperative scar and arthritis and his right total knee arthroplasty are each rated 30 percent. His right thigh scar is rated 10 percent. The combined rating for his service connected disabilities is 60 percent. As the service-connected right foot and right knee disabilities affect a single body system (orthopedic), he is considered to have one 60 percent disability for purposes of 38 C.F.R. § 4.16(a). Accordingly, he meets the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). The analysis therefore progresses to whether the service-connected disabilities are of such nature and severity and their associated disability picture so distinct from the average veteran with a single body system rated 60 percent disabled as to preclude the Veteran from participating in any regular substantially gainful employment, and render him individually unemployable. A June 2000 decision awarding the Veteran Social Security disability benefits notes that he has the equivalent of a high school education and past relevant work as a mail service clerk, general office clerk, a water truck driver and a driver/supervisor (courier). He had not worked since June 2, 1995. The administrative law judge found that the Veteran's left knee replacement and lumbar decompression and fusion at L4-5 resulted in severe impairments. Although he retained the residual functional capacity to perform a range of sedentary work or work which involved limited lifting, walking, and sitting, it was determined that the Veteran was unable to perform his past relevant work. In his September 2007 TDIU application (on VA-Form 21-8940), the Veteran reported that residuals of his service-connected right foot and knee disability prevented him from a substantially gainful occupation. He reported work experience for the previous 8 years as a clerk and that he had become too disabled to work in 1995. He indicated that he had obtained a graduate equivalency diploma (GED). On January 2008 VA examination, the Veteran reported right foot and right knee pain upon standing up for long periods or ambulating. He reported having to sit down after 30 minutes of prolonged standing and rest every 1 or 2 blocks when walking as a result of the disabilities of his feet, knees and low back (notably, the Veteran's left foot, left knee and low back disabilities are not service-connected). He also reported mild tenderness of the right thigh scar which was otherwise non dysfunctional. The examiner noted that the Veteran's right foot and knee conditions, by themselves, do not render him unemployable for occupation not requiring prolonged ambulation or prolonged standing. In addition to his left foot, left knee and low back disabilities; the Veteran's nonservice-connected conditions also included diabetes mellitus, dental trauma (he only had about half the number of teeth he should have), anxiety reaction with conversion symptoms, bilateral hearing loss, right foot plantar fasciitis, right ankle sprain, and central type obesity Class II. The examiner opined that the Veteran's multiple skeletal conditions (service connected and nonservice connected disabilities combined) rendered him unemployable for any type of occupation. An April 2008 VA Form 21-4192, Request for Employment Information, shows that the Veteran's employment as an administrative clerk ended on June 2, 1995. Further, it was noted that the position requirements are such that one cannot have many limitations with feet, back, and knees. Because the Veteran had such limitations, he was no longer able to perform the duties required of the job. A June 2008 addendum to the January 2008 VA examination includes the contrary opinion that "the service connected and non service connected conditions do not render veteran unemployable." However, a subsequent addendum (on the same day) requests that the addendum opinion be disregarded because it "is not the question asked of the examiner" and "is not in the scope of the medical examination report." In a February 2010 decision, the Board denied ratings in excess of 30 percent for the Veteran's residuals of right foot injury and right total knee arthroplasty. On February 2012 VA examination, the examiner noted the Veteran's employment history and his service connected and non service connected disabilities. The examiner opined that the Veteran's non service connected conditions relating to his lumbar spine, left knee, diabetes type 2 with peripheral neuropathy, and bilateral hand pains could affect his ability to sustain employment. Further, the examiner opined that the Veteran's service-connected right foot and knee disabilities and his right thigh scar do not impact his ability to work. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities, alone, are sufficiently severe as to produce unemployability. The 2008 and 2012 VA medical opinions have substantial probative weight against the claim for TDIU, as they took into account the Veteran's complete disability picture, conducted thorough examinations describing the Veteran's physical limitations as a result of his service-connected and non-service-connected disabilities, and included a sufficient explanation of rationale. In essence, the evidence of record shows that the Veteran has training and experience that equip him to engage in gainful, sedentary employment. The SSA records show that his work experience was "semi-skilled in nature" and he had the equivalent of a high school diploma. Further, he "retained the residual functional capacity to perform a range of sedentary work." His former occupations as a driver, a clerk, and a supervisor certainly would include sedentary work. In this regard, the 2012 VA examiner noted that his physical limitations were: no lifting over 25 lbs., no prolonged lifting from 15-25 lbs., no more than 6 times per hour; no climbing ladders, operating a forklift, or machinery; no repetitive back bending tasks, no more than 6 times per hour; no prolonged standing or walking, no more than 15 minutes total of combined standing and walking per hour; and no prolonged keyboard work, no more than 30 minutes per hour. Put another way, the Veteran is able to perform semi-skilled work, he has experience as a driver and clerk, he can lift up to 25 lbs; he can walk and stand up to 15 minutes every hour; and he can work on a keyboard one half of every hour. His service connected disabilities (disregarding his nonservice-connected disabilities and his age) involve his right lower extremity and are not shown to be of such nature and severity as to prevent him from engaging in sedentary employment. The January 2008 VA examiner specifically opined that the Veteran's right foot and knee conditions, by themselves, do not render him unemployable for occupation not requiring prolonged ambulation or prolonged standing. The June 2000 Social Security disability decision found the Veteran unable to perform his past relevant work as a result of nonservice-connected disabilities alone: his left knee replacement and lumbar decompression and fusion at L4-5. As a consequence, the Board finds the SSA decision to have minimal to no probative value with respect to the impact of the Veteran's service-connected disabilities on his employability. Significantly, however, the SSA decisionmaker found that the Veteran retained the residual functional capacity to perform a range of sedentary work or work which involved limited lifting, walking, and sitting. Nothing in the record shows that the service-connected disabilities, alone, cause impairment for which accommodation in sedentary employment is not possible. While the Veteran clearly has multiple problems which cause occupational impairment in the more strenuous types of employment, such is reflected by his combined 60 percent rating. The preponderance of the evidence is against this claim; therefore, the appeal in this matter must be denied. ORDER Entitlement to a TDIU is denied. _________________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs