Citation Nr: 1319425 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 04-08 388 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from October 1972 to September 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the RO which, in part, denied entitlement to TDIU. A hearing at the RO before the undersigned was held in July 2006. The Board remanded the appeal for additional development in November 2006, May 2008 and July 2012. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include residuals of left tibia and fibula fracture; rated 30 percent disabling, degenerative joint disease of the left hip and lumbar strain; each rated 10 percent disabling, and residuals of right fibula fracture, rated noncompensably disabling. The combined rating is 40 percent. 3. The Veteran has two years of college education, had occupational experience as a salesman, as a clerk and letter carrier for the U.S. Postal Service and as a cab driver; he reportedly last worked in 1996. 4. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 3.655, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in June 2003 and May 2008. Although the most recent letter was not sent prior to initial adjudication of his claim, this was not prejudicial to the Veteran, as the claim was readjudicated and a supplemental statement of the case (SSOC) were promulgated in March 2013. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Veteran testified at a hearing before the undersigned at the RO in July 2006, and on remand, was scheduled for a VA examination in February 2013, but failed to report and has not contacted VA to request to be rescheduled for another examination. The RO also attempted to obtain records from the Social Security Administration (SSA), but was informed in December 2006, that the Veteran's records could not be located and were unavailable. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. As noted above, the Veteran testified a hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal and the evidence necessary to substantiate the claim, and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, the case has been subject to a prior Board remand. The AMC has associated all available treatment records with the claims folder and attempted to obtain a medical opinion concerning the severity of the Veteran's service-connected disabilities and the degree to which they impact on his ability for substantially gainful employment. As indicated above, however, the Veteran failed to report for a VA examination scheduled in February 2013, and has not contacted VA to request to be rescheduled. In this regard, the Board notes that the claims file includes a statement by AMC, dated in March 2013, to the effect that the Veteran's mailing address in the CAPRI and MAP-D systems were the same, that there was no telephone number of record to contact the Veteran, and that he had failed to report for a VA examination in February 2013. Under the circumstances, the Board finds that the AMC has substantially complied with the July 2012 remand orders and that no further action is necessary in this regard. 38 C.F.R. § 3.655 (2012); Routen v. West, 142 F.3d 1434, (Fed. Cir 1998); see also, D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue addressed in this decision is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Under the applicable criteria, a total disability rating 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). VA regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, disposition of the matter will be based on the nature of the claim; that is, whether it is an original claim, a reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim; a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. TDIU The Veteran contends that he is unable to stand or walk for any prolonged period of time due to chronic low back and left leg pain, and believes that his service-connected disabilities render him incapable of working. The evidence of record showed that the Veteran has two years of college education and previously worked as a salesman, a clerk and letter carrier for the U.S. Postal Service and as a cab driver. At the hearing in July 2006, the Veteran testified that he last worked as a cab driver in 1996, and said that he couldn't go back to driving a cab or work in any type of employment involving contact with the public because of severe depression and panic attacks and because of his low back pain. (T p.15-16). The Veteran's service-connected disabilities include residuals of left tibia and fibula fracture, rated 30 percent disabling; degenerative joint disease of the left hip and lumbar strain; each rated 10 percent disabling, and residuals of right fibula fracture, rated noncompensably disabling. The combined rating is 40 percent. In this case, the Veteran does not meet the schedular criteria for a total disability rating based on individual unemployability. That is, the Veteran does not have a single disability rated 40 percent disabling, and does not have a combined rating of 70 percent or more. His combined rating is 40 percent. Therefore, he does not meet the threshold requirements for TDIU. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes this case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When examined by VA in July 2003, the Veteran had full and painless range of motion in his knees and there was no instability, swelling or tenderness in his knees or ankles. Dorsiflexion in the right ankle was from zero to 20 degrees with plantar flexion from zero to 40 degrees. Dorsiflexion in the left ankle was from zero to 10 degrees with plantar flexion from zero to 20 degrees; all movements were without pain. There was some stiffness and deformity in the left ankle and the left leg was 2-cm shorter than the right. The diagnoses included right fibula fracture without residuals, fracture of the left tibia and fibula and arthritis of the left ankle. The examiner opined that the Veteran was not able to work as a mailman due to left leg pain, and commented that because of his psychiatric problems, the Veteran was probably unable to do any type of sedentary work. In an addendum report, dated in December 2003, the VA examiner opined that it was less likely than not that the Veteran's depression and anxiety were due to or aggravated by his service-connected disabilities. In May 2008, the Board denied the claim of service connection for a psychiatric disability, including as due to service-connected disability. When examined by VA in March 2007, the Veteran reported that he had intermittent pain in his left hip and low back for about five years and had difficulty sleeping, sitting and walking. He said that he was able to perform the routine activities of daily living and most of the housework in his apartment without any problem. On examination, there was no swelling, warmth, tenderness, crepitus, effusion or deformity in the left hip. There was some diminished strength (4/5) and atrophy in the left thigh and calf and strength in the right leg was normal. Sensation and reflexes were present and equal, and all joint movements were normal. Active and passive extension/flexion in the hip was from zero to 90 degrees, adduction was to 30 degrees, and abduction and internal and external rotation was to 40 degrees - all movements were without pain. Active and passive flexion of the low back was to 90 degrees, extension was from zero to 25 degrees, and rotation and right and left lateral flexion was to 30 degrees - all movements were without pain. The lumbosacral muscles were tender and tense and his gait was antalgic. There was no addition limitation of motion in the left hip, left ankle or low back due to pain, weakness, fatigue, lack of endurance, incoordination or on repetitive use. X-ray studies showed mild degenerative joint disease of the left hip and a 1-cm sclerotic density in the intertrochanteric region of the femoral neck. X-ray studies showed spondylolysis of pars interarticularis of S1 on the right and the disc spaces were biconcave with narrowing at L1-L2 and T12-L1, with lumbar vertebrae spurs. There was no spondylolisthesis. In an addendum report, dated in May 2007, the VA physician indicated that he reviewed the claims file and opined that while the Veteran could not perform work requiring heavy lifting of more than 20 pounds, he could work in a sedentary type of employment, such as a desk job. When examined by VA in August 2008, the Veteran's complaints and the clinical and diagnostic findings were essentially the same as on the March 2007 VA examination report. The Veteran's gait and station were within normal limits, although there was some tendency to favor the right lower extremity which showed greater wear on the right heel and on the left toe consistent with shortening of the left lower extremity. Range of motion of the back was from zero to 90 degrees, with rotation and right and left lateral flexion to 30 degrees - all movements were without pain. Flexion of the left hip was from zero to 120 degrees, abduction was from zero to 45 degrees, and extension, adduction and internal and external rotation was normal- all movements were without pain. Flexion in the left knee was from zero to 130 degrees with pain, swelling, crepitation or capsular thickening. McMurray's signed was negative and the cruciate and collateral ligaments were intact. Examination of the left ankle revealed old, healed surgical scars which were nonadherent to the underlying tissue. There was gross deformity of the left ankle, clinically, but no tenderness could be elicited. Plantar flexion was from zero to 20 degrees, and dorsiflexion and inversion and eversion was from zero to 10 degrees - all movements were without pain but were limited by stiffness at the end ranges of motion. The examiner indicated that there was no additional functional impairment in the lumbosacral spine or left hip, knee or ankle due to pain, weakness, fatigability, incoordination or during flare-ups. There were no incapacitating episodes or radiation of pain and no neurological findings that would affect the Veteran's occupation or daily activities. The examiner opined that while the Veteran would be limited in his ambulation by his reported history of pain after walking a half to three-quarters of a block, sedentary-type employment was still feasible. As noted above, the Board remanded the appeal in July 2012, for another VA examination and a more detailed opinion as to whether the Veteran's service-connected disabilities rendered him unemployable. Although the evidentiary record included a medical opinion to the effect that the Veteran could perform sedentary work, the Board found that the examiner did not provide a sufficiently detailed explanation as to basis for that opinion. The Veteran was subsequently scheduled for a VA examination in February 2013, but failed to report and did not contact VA to request to reschedule. VA regulations provide, in pertinent part, that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase; a claim for TDIU is a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). However, as the Veteran did report for prior VA examinations in connection with his claim for TDIU, the Board will adjudicate his claim based on the evidence of record. In this case, the evidence shows that while the Veteran complains of intermittent pain in his lower back, left hip, knees and left ankle, he has full or nearly full, painless range of motion in his back, left hip and knees and no more than moderate limitation in his left ankle; the latter being limited only by stiffness. Other than some diminished strength and atrophy in his left thigh and calf, there was no evidence of any significant actual or functional impairment in the effected joints. While the Board does not dispute that the Veteran experiences some industrial impairment due to his service-connected disabilities, the degree of impairment is adequately reflected by the combined schedular rating of 40 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record fails to show that the Veteran's service-connected disabilities, either singularly or in combination, are so severely disabling as to render him unable to secure or follow substantially gainful employment. The available evidence of record tends to show that the Veteran is able to perform sedentary type of work. Accordingly, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs