Citation Nr: 1319387	
Decision Date: 06/14/13    Archive Date: 06/21/13

DOCKET NO.  12-22 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Reno, Nevada


THE ISSUES

1.  Entitlement to a disability rating in excess of 60 percent for bronchial asthma.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1955 to January 1958.

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2012 rating decision in which the RO denied entitlement to a TDIU and to a rating in excess of 60 percent for bronchial asthma.  In February 2012, the Veteran filed a notice of disagreement (NOD).  The RO issued a statement of the case (SOC) in August 2012 and the Veteran filed his substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month.

In May 2013, a Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012).


FINDINGS OF FACT

1.  On February 26, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative indicating that he wished to withdraw from appeal the claim for an increased rating for bronchial asthma.

2.  All notification and development actions needed to fairly adjudicate the claim for a TDIU have been accomplished.

3.  The Veteran has been awarded service connection for bronchial asthma, rated as 60 percent disabling from July 3, 2003. 

4.  Although the percentage requirement for award of a schedular TDIU are met, at no point pertinent to the current claim has the Veteran's service-connected bronchial asthma, alone, been shown by competent, credible and probative evidence to prevent him from obtaining or retaining substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal as to the claim for an increased rating for service-connected bronchial asthma have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for a TDIU are not met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Higher Rating Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  A substantive appeal may be withdrawn on the record during a hearing, and at any time before the Board promulgates a decision.  See 38 C.F.R. §§ 20.202, 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

As noted, the RO issued a January 2012 rating decision that continued the previously assigned 60 percent rating for service-connected bronchial asthma.  The Veteran perfected an appeal with respect to that issue by filing a timely NOD in February 2012 and substantive appeal in August 2012. 

On February 11, 2013, the RO certified the Veteran's appeal to the Board.  However, also as noted above, the Veteran submitted a written statement later in February 2013 and therein stated that, although he had "requested a higher evaluation for his asthma," he was "satisfied with his rating decision and would like to withdrawal on that issue." 

The Board finds that the Veteran's February 2013 written statement constitutes withdrawal of the substantive appeal with respect to the claim for an increased rating for service-connected bronchial asthma.  The statement plainly reflects his desire to withdraw his appeal as to that issue.  

Thus, there remains no allegation of errors of fact or law for appellate consideration with regard to the claim for an increased rating for service-connected bronchial asthma.  Accordingly, the Board does not have jurisdiction to review the appeal as to that matter and it must be dismissed.


II. TDIU Claim

A. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).   As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, in an April 2011 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a TDIU, what information and evidence he must submit, and what information and evidence would be obtained by VA.  This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  As the January 2012 rating decision reflects the initial adjudication of the claim for a TDIU, the April 2011 letter meets the VCAA's content of notice requirements and timing of notice requirement. See  Dingess/Hartman, 19 Vet. App. 473; Pelegrini, 18 Vet. App. at 112.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter remaining on appeal.  Pertinent objective evidence associated with the claims file consists of VA treatment records, private treatment records, employment information, and the report of a May 2011 VA examination.  The Board finds that the VA examination report is adequate to decide the issue on appeal as the examination was predicated on interview with the Veteran, review of the record, and physical examination with diagnostic testing.  The duty to assist with respect to obtaining a VA examination has been met since the opinion proffered by the May 2011 examiner considered the pertinent evidence of record and provided a rationale, relying on and citing to the evidence reviewed.  See 38 C.F.R. § 3.159(c)(4).  Also of record and considered in connection with the appeal are various written statements provided by the Veteran, his former employer, and his son, on his behalf.  The Board finds that no additional RO action to further develop the record in connection with the claim for a TDIU, prior to appellate consideration, is required.

In summary, the duties imposed by the VCAA have been considered and satisfied. Through notice of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

B. Analysis

Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

A total disability rating may also be assigned on an extra-schedular basis, in exceptional cases, and pursuant to specifically prescribed procedures, for a Veteran who is unable to secure and follow a substantially gainful occupation (i.e. is unemployable) by reason of a service- connected disability, but who fails to meet the percentage requirement set forth in section 4.16(a).

In this case, service connection has been established for bronchial asthma, rated as 60 percent disabling from July 3, 2003.  Thus, as of July 3, 2003, the Veteran met the minimum percentage requirements of 38 C.F.R. § 4.16(a) for award of a schedular TDIU.  However, notwithstanding that fact, in this case, as explained in more detail below, the record simply does not support a finding that the Veteran's bronchial asthma, alone, has rendered him unable to obtain or retain substantially gainful employment at any point pertinent to the March 2011 claim for a TDIU.  

The central inquiry in a claim for TDIU is 'whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.'  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also 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 recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.

VA medical records reflect that the Veteran has been treated for numerous medical problems, to include his service-connected bronchial asthma as well as hypertension, diabetes mellitus, kidney disease, and obesity. 

On his VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran indicated that he had been employed since January 2004 with a "transport" company.  He stated that his bronchial asthma affected his full time employment in January 2011 and, as a result, he was currently on a part-time schedule.  He reported that his highest level of schooling was through his second year of college, that he was a licensed aircraft mechanic, and had also been licensed as building inspector in Nevada.  

A January 2011 private treatment note shows that the Veteran reported that he believed his current physical health was the same as it had been during the prior year.  The Veteran reported that he was doing "quite well" except for cough and slight wheezing over the last week.  The physician noted that the Veteran appeared well and in no distress, his respiratory rate was 18, and his lungs were clear although he had decreased air entry and expiratory wheezing.  The physician noted COPD as well as chronic bronchitis with acute exacerbation and prescribed a treatment that was noted to result in immediate improvement.  A February 2011 VA treatment note reflects that the Veteran's respiration rate was 18 and his breath sound were clear.

In March 2011, the Veteran wrote to VA and requested that his benefits be increased so he could "keep up with the cost that I bear in trying to support myself."  He reported that he could "no longer maintain the type of employment I need for my wife and myself" and noted that he could no longer climb a flight of stairs.

An April 2011 statement from the Veteran's former manager states that the Veteran submitted a letter of resignation in January 2010 and expressed that he did not feel as though he could "perform his duties of lifting, loading, and rushing the passengers to their[sic] locations."  In order to retain the Veteran, the manager offered him an "alternated position" with different duties and fewer hours.  At the time of the letter, the Veteran was employed as the company's part-time duty manager.  The Veteran's manager wrote that the Veteran was valuable to the company due to his experience and his training ability and that she would allow him to "mak[e] his work schedule predicated on his health conditions."  

In April 2011 , the Veteran's son, a physician, wrote VA letter stating that he had experienced bronchial asthma since being in the military and "the effects of this disease [have] continued to progress over the years."  Dr. Favors wrote that the disability was now chronic and progressive, requiring treatments that have "a significant impact on his overall health and welfare."  The "frequent medical treatments and evaluations" were described as a financial burden and Dr. Favors stated that the Veteran needed "increased financial assistance to take care of his increased medical needs."  Dr. Favors also observed that the Veteran now had hypertension and diabetes in addition to bronchial asthma.

In addition to submitting the letters from his employer and son to VA, the Veteran also submitted multiple bills for medical treatments.  The bills indicate that the Veteran sees non-VA providers, and takes non-VA medications, for his respiratory complaints.

VA afforded the Veteran a general medical examination in May 2011.  The examiner noted review of the claims file and summarized the Veteran's medical history, in general and in specific regard to service-connected bronchial asthma.  The report notes that the Veteran sees a private physician as well as VA for his asthma.  The Veteran informed the examiner that his primary health concern was increased dyspnea that required him to stop for a break during any activity - he stated that he had no other problems.  The Veteran reported that his symptoms had worsened since December 2010, but he was still working, either driving or doing paper work, although it was becoming increasingly difficult.  The examiner noted that the Veteran had dyspnea upon mild exertion and experienced an acute attack about once a week.  

On examination, the examiner observed that the Veteran was morbidly obese and had gained 12 pounds in the last two months.  His nose, mouth, throat, and sinuses were normal, but he had abnormal breath sounds on the right and left due to "few scattered ronchi."  The examiner noted that the Veteran's obesity limited both his chest expansion and his general range of motion.  Chest x-ray revealed mild hyperinflation of the lungs as well as bilateral apical scarring.  Pulmonary function testing revealed severe obstructive lung disease with coexisting restrictive lung disease; the Veteran's FEV1/FVC was 60.07%, which the examiner identified in an October 2011 addendum as a predictor of disability level.  Although noting that the Veteran's asthma did affect everything he did, the examiner opined that he was able to do light work and sedentary desk jobs and noted that he was currently able to "keep books" for his employer.

Later in May 2011, the Veteran sought VA treatment for cough and congestion.  He advised the treating provider that he had run out of Combivent.  The provider diagnosed bronchial asthma, renewed his Combivent prescription, and advised him to take two puffs of the Combivent inhaler four times daily.  He returned for additional VA treatment in July 2011 and was assessed with, and treated for upper respiratory infection.  The treating provider advised him to return in one to three months for a follow up appointment.

Subsequently, VA received an August 2011 fax from the Veteran's former employer with additional employment information.  On a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), the employer stated that the Veteran had been employed from January 2006 to June 2011.  At the time his employment ended, he was working a part-time (20 hours per week) schedule as a "driver / duty manager / trainer; the form indicates that changes to his employment were allowed as a concession to accommodate his disability.  The form indicates that the Veteran quit in June 2011 because he "felt complacent due to his medical issues and requested termination of employment."

A November 2011 VA treatment note reflects that the Veteran reported for a general appointment and was alert and oriented, well-developed, able to ambulate independently, and able to take care of himself.  His respiration rate was measured at 18.  At a separate November 2011 VA appointment for medication refills, the Veteran stated that he "feels good, no chest pains or shortness of breath."  His respiration was again measured at 18 and his breath sounds were clear. 

Although VA treatment notes dated through January 2012 reflect no change in the Veteran's disability level, in a February 2012 letter, the Veteran asserted that his normal activities were "greatly reduced" because his asthma had progressed.  He reported that he was unable to walk "for any distance" or to climb stairs.  He noted that "being 74, I have limitations."  However, the Veteran volunteered to be considered for employment with VA and suggested that he might be able to work as a clerk or investigator.  In conclusion, he requested that VA grant his claim so that he could "cover [his] increasing expenses." 

In an August 2012 letter, the Veteran again contended that his bronchial asthma got "more intense" over the years, requiring him to stop working.  He explained that disability was "with [him] every day and all seasons."  He also stated that he "take[s] a series of medications, to include breathing treatments" and, as a result, "manage[s] to live with comfort."

It is noteworthy that no medical professional has opined that the Veteran's bronchial asthma, alone, produces unemployability.  The 2011 VA examiner opined that the Veteran could perform sedentary employment-and noted that he was, at that time, performing such employment-and there is no other medical opinion, specific to the topic of employability, in the claims file.  There is an April 2011 private medical opinion from the Veteran's son, but it does not actually address his ability to work.  Instead, that letter states that the Veteran requires financial assistance, apparently to obtain medical care for his service-connected disability (i.e. care that is available to him at no cost at VA facilities).  

Although the Veteran did not file his current claim for a TDIU until 2011, the Board notes that he has long asserted being unable to work as a result of his bronchial asthma.  See August 2003 letter stating "I am no longer able to work."  However, the Board also observes that, at approximately the same time of his 2003 assertion, the Veteran's FEV1/FVC was measured at 61 percent.  Several years later, pulmonary function tested conducted by the Veteran's private physician in March 2009 reflects an FEV1/FVC of 61.4 percent; a VA test in July 2009 showed FEV1/FVC of 64% and the examiner noted that measurement "most accurately reflects the Veteran's disability due to the service-connected bronchial asthma."  As his FEV1/FVC was 60.4 percent in 2011, the evidence reflects that clinical measurements of the severity of the Veteran's only service-connected disability have remained relatively stable over the last several years.  Further, although the Veteran complained of increasing dyspnea at the May 2011 VA examination, similar complaints are not reflected in private or VA treatment notes.  Rather those notes reflect an "essentially stable" disability (January 2011 private treatment note) and that the Veteran denied shortness of breath (November 2011 VA treatment note).  

In specific regard to the Veteran's own statements and contentions, the Board is mindful that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence may be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  However, it also notes that VA "may give it whatever weight it concludes the evidence is entitled to."  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Further, the Board has a duty to assess the credibility of the evidence.  Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See Caluza v. Brown, 7 Vet. App. 498 (1995).

Here, the Veteran's contentions as to the severity of his service-connected bronchial asthma, specifically as to its effects on his employability, are not supported by the evidence of record.  Although he has consistently reported not being able to work, he worked full time for many years when his bronchial asthma was measured at clinically similar levels.  Further, as noted above, he has contended in lay statements and during the 2011 VA examination that his bronchial asthma, alone, is so severe that it prevents his employment and inhibits his daily functioning, but that contention is contradicted by his own statements to other medical providers, the clinical assessments of record, and his own August 2012 admission that, with medication, he lives comfortably.  The Veteran has also submitted internally inconsistent evidence such as a February 2012 letter in which he contended that his bronchial asthma was more progressive and had limited him to the point of unemployability, but indicated that he wished to be considered for VA employment as a clerk or investigator.  For these reasons, the Board finds that the Veteran's assertion as to the severity or his disability and how it impact his ability to obtain or retain employment, are not credible.

Furthermore, to whatever extent the Veteran may be attempting to establish entitlement to a TDIU on the basis of lay assertions, alone, the Board emphasizes that he is not shown to have training or expertise in medical or vocational matters.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  Hence, lay assertions as to the ultimate question for consideration-whether the Veteran is, in fact, rendered unemployable as a result of his service-connected disability-have no probative value.

An award of a TDIU is based solely upon the impairment caused by service-connected disability - impairment caused by non-service-connected disabilities and by age may not be considered when evaluating the claim.  Here, as indicated, the Veteran has only been awarded service connection for bronchial asthma, and the competent, probative evidence simply does not support a finding that this disability, alone, renders him unemployable.  Not only has no medical professional provided such an opinion, but medical and employment evidence reflects that he is both qualified and able to perform sedentary employment such as 'keeping the books.' Although not dispositive of the unemployability question, the Board also suggests that the Veteran's current functional limitations are not solely attributable to bronchial asthma: the 2011 VA examiner observed that the Veteran's non-service connected obesity restricted his mobility as well as his ability to expand his chest to breathe; the Veteran's son observed that he also experienced disability due to diabetes and hypertension; the Veteran himself has acknowledged that limitations due to age.  See February 2012 NOD.

As the May 2011 VA examiner provided a detailed opinion, based on his review of the claims file and examination and interview of the Veteran, the Board finds that this opinion-that the Veteran is not currently unemployable due solely to his service-connected bronchial asthma and could perform sedentary work [which, the Board notes, parenthetically, was apparently open to him at his former place of employment]-is most probative of the TDIU question.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993).  Thus, the only competent, persuasive opinion to address the impact of the Veteran's sole service-connected disability on his unemployability weighs against the claim, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any medical or vocational opinion that, in fact, supports the claim. 

Under these circumstances, the Board finds that the claim for a TDIU must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

The appeal as to the claim for a rating in excess of 60 percent for service-connected bronchial asthma is dismissed.

The claim for a TDIU is denied.


____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs