Citation Nr: 1319859 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-38 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty for training from June 1964 to November 1964 and on active duty from October 1970 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In January 2008, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2009. FINDINGS OF FACT 1. From July 25, 2007 to July 13, 2009, the Veteran was service connected for diabetes mellitus, type II, and traumatic arthritis of the left ankle, each evaluated as 20 percent disabling; degenerative joint disease and chondromalacia of the right knee, hypertension, tinnitus, and right shoulder strain, each evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids/anal fissure, and a laceration of the scalp, each evaluated as 0 percent disabling; the combined rating was 60 percent with consideration of the bilateral factor. 2. From July 14, 2009 to the present, the Veteran is service connected for hypertensive heart disease associated with hypertension, evaluated as 30 percent disabling; diabetes mellitus, type II, and traumatic arthritis of the left ankle, each evaluated as 20 percent disabling; degenerative joint disease and chondromalacia of the right knee, hypertension, tinnitus, right shoulder strain, peripheral neuropathy of the left lower extremity associated with diabetes mellitus, and peripheral neuropathy of the right lower extremity associated with diabetes mellitus, each evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids/anal fissure, and a laceration of the scalp, each evaluated as 0 percent disabling; the combined rating is 80 percent with consideration of the bilateral factor. 3. The Veteran has completed four years of college and last worked in June 2007 as a security officer. 4. The Veteran's service-connected disabilities are not of such severity as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a total disability rating based on individual unemployability are not met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While 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) (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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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. Prior to the initial adjudication of the Veteran's claim, a letter dated in September 2007 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. Additionally, the September 2007 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has at no time referenced any private or other outstanding treatment records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist 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). The AMC provided the Veteran with VA examinations to address his service-connected disabilities and employability in September 2008 and August 2009. The examiners reviewed the claims file and provided thorough physical examinations. The examiner's conclusions were based on the evidence of record and supported by a sufficient rationale. Therefore, the Board finds that the examinations are adequate to decide the claim for TDIU. 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). 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). II. Merits of the Claim The Veteran claims that he is unemployable as a result of his service-connected disabilities, specifically his orthopedic disabilities. Therefore, he believes that a TDIU is warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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. See 38 C.F.R. § 4.16(a) (2012). Disabilities resulting from a common etiology or affecting a single body system are considered one disability for the purpose of reaching the 60 percent single disability or 40 percent disability in combination with others. See 38 C.F.R. § 4.16(a)(2)-(3) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). 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. See 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran filed his claim for TDIU on July 25, 2007. In a January 2010 rating decision, he was granted service connection for three additional disabilities, increasing his combined disability rating, as of July 14, 2009. Accordingly, the Board will address the Veteran's entitlement to TDIU from July 25, 2007 to July 13, 2009 and from July 14, 2009 to the present. From July 25, 2007 to July 13, 2009, the Veteran was service connected for diabetes mellitus, type II (DM), and traumatic arthritis of the left ankle, each evaluated as 20 percent disabling; degenerative joint disease and chondromalacia of the right knee, hypertension, tinnitus, and right shoulder strain, each evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids/anal fissure, and a laceration of the scalp, each evaluated as noncompensably disabling. With consideration of the bilateral factor, his combined rating was 60 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012); see also 38 C.F.R. § 4.26 (2012). For this period, the Veteran did not have any service-connected disabilities ratable at 40 percent or more, and his total disability rating was less than 70 percent. Moreover, in view of the varying etiologies of the Veteran's numerous service-connected disabilities, such disabilities may not be considered one 60 percent disability, as may be permitted under certain circumstances detailed in 38 C.F.R. § 4.16(a). Therefore, his service-connected disabilities did not meet the percentage rating standards for schedular TDIU for this earlier period. See 38 C.F.R. § 4.16(a) (2012). Nonetheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See also Bowling, 15 Vet. App. at 6. For a veteran to prevail on a claim of entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the veteran 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). As of July 14, 2009, the Veteran is service connected for hypertensive heart disease associated with hypertension, evaluated as 30 percent disabling; DM and traumatic arthritis of the left ankle, each evaluated as 20 percent disabling; degenerative joint disease and chondromalacia of the right knee, hypertension, tinnitus, right shoulder strain, peripheral neuropathy of the left lower extremity associated with DM, and peripheral neuropathy of the right lower extremity associated with DM, each evaluated as 10 percent disabling; and bilateral hearing loss, hemorrhoids/anal fissure, and a laceration of the scalp, each evaluated as noncompensably disabling. With consideration of the bilateral factor, his combined rating is 80 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012); see also 38 C.F.R. § 4.26 (2012). Although the Veteran is not in receipt of a single disability rating of 40 percent or more, his hypertensive heart disease and hypertension and his DM and peripheral neuropathies of the bilateral lower extremities are each considered to have resulted from common etiologies (hypertension and DM, respectively). His combined rating for hypertensive heart disease (30 percent) and hypertension (10 percent) is 40 percent and his combined rating for DM (20 percent), peripheral neuropathy of the left lower extremity (10 percent), and peripheral neuropathy of the right lower extremity (10 percent) is 40 percent. See 38 C.F.R. § 4.25, Table I (2012). Therefore, as he receives two single disability ratings of 40 percent or more for disabilities resulting from a common etiology and a combined rating of 70 percent or more, he meets the percentage rating standards for TDIU for this later period. See 38 C.F.R. § 4.16(a) (2012). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. Having reviewed the record, the Board finds no persuasive evidence suggesting that the Veteran is unemployable due to his service-connected disabilities as of July 14, 2009 or that his case was outside the norm prior to July 14, 2009, warranting extraschedular consideration. The Veteran has completed four years of college and has a college degree in criminal justice. He last worked in June 2007 as a security guard. He claims he left his job due to his service-connected orthopedic disabilities, specifically his right knee disability, and the resulting inability to perform the hourly rounds required. Prior to his most recent job, the Veteran has owned a bookstore and worked as an office manager for the Census Bureau. The medical evidence regarding the Veteran's employability includes medical examinations from the Social Security Administration (SSA), VA treatment records, and VA examination reports. Although these pieces of medical evidence show that the Veteran would be limited in or precluded from obtaining employment requiring physical activity, the record does not establish that he would be unable to engage in sedentary employment. SSA records indicate that the Veteran has been considered disabled by SSA since June 1, 2007 and receives SSA disability benefits based primarily on a diagnosis of obesity and secondarily on a diagnosis of osteoarthrosis. On his SSA disability benefits application, the Veteran reported that he was limited physically and in his range of motion and that this prevented him from working. He reported having completed four or more years of college and having the ability to check email, use the internet, follow written and spoken instructions, and complete tasks. In conjunction with his SSA claim, the Veteran was afforded a physical examination in August 2007. At that time, the physician found that he had the ability to perform work-related activities, including sitting, speaking, and hearing. Although the physician found he would likely be unable to perform any exertional tasks, he indicated that he would be able to perform work involving sedentary tasks. VA treatment records reflect that the Veteran would be unable to do work that involved prolonged sitting or standing and that he would need to keep his legs out or elevated when sitting. See VA treatment record, July 2007. Other than these physical restrictions, the VA treatment records do not indicate that the Veteran would be prevented from maintaining any substantially gainful employment. Although VA treatment records reflect that the Veteran has been hospitalized twice since 2007, at least in part due to his hypertensive heart disease, the Veteran specifically denied any episodes of syncope. Finally, the Veteran has been afforded several VA examinations during the period on appeal. A January 2007 VA examination for his right knee, left ankle, and right shoulder indicated that he was still employed as a security guard at that time. Although he reported being able to make fewer rounds than was expected due to difficulty with standing and walking, he reported no problems when sitting. September 2008 VA examinations for his peripheral nerves and heart indicate that he retired due to his arthritis. The examiners did not indicate that he experienced any occupational impairment due to his peripheral nerves or heart. Significantly, the Veteran reported that he did not feel limited by his heart condition unless his heart rate becomes irregular, resulting in fatigue upon little exertion. August 2009 VA examinations of the Veteran's right knee, heart, and hypertension similarly did not show that he would be unable to engage in all forms of employment. The right knee examination report indicated that the Veteran's right knee disability resulted in significant effects on his usual occupation due to decreased mobility and pain. However, there is no indication that these effects would extend to sedentary employment. The hypertension and heart examination reports indicate that the Veteran's hypertension and hypertensive heart disease resulted in no significant effects on his usual occupation. In addition to the medical evidence, the Veteran has submitted personal statements and a lay statement from his friend, G. S. T. Both the Veteran and G. S. T. reiterated the Veteran's physical limitations, as reflected in the medical evidence. However, neither the Veteran nor G. S. T. suggests that the Veteran is unable to engage in sedentary employment with the appropriate accommodations for his physical limitations. While the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, as evidenced by his 60 and 80 percent combined ratings, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated by the currently assigned 60 and 80 percent combined ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1 (2012). Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The only evidence in this case in support of the grant of a TDIU is the Veteran's own contentions. While he is competent to discuss the symptoms of his service-connected disabilities and his perception of their effect on his unemployment, his assertions are outweighed by the conclusions of the relevant VA examiners. The examiners based their conclusions on a review of medical records, the Veteran's reported history, and a contemporaneous physical examination. Moreover, although the Veteran receives SSA disability benefits, these benefits are not based solely on his service-connected disabilities. Significantly, the primary diagnosis supporting his SSA disability benefits is obesity, not one of his service-connected disabilities. In accordance with 38 C.F.R. § 3.16(b), a TDIU on an extraschedular basis may be referred to and considered by the Director, Compensation and Pension Service, when the appropriate circumstances arise, to determine whether a veteran is unemployable by reason of service-connected disabilities but who fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). From July 25, 2007 to July 13, 2009, the Board reiterates that the Veteran did not meet the percentage requirements for TDIU on a schedular basis. Moreover, as there is no evidence to support a finding that his disabilities are outside the norm, the Board finds that referral for extra-schedular consideration is not warranted from July 25, 2007 to July 13, 2009. Van Hoose, 4 Vet. App. 361. In view of the Veteran's education and work history, which in the Board's estimation is sufficient for meeting the requirements of many sedentary jobs, the Board reiterates that referral for extra-schedular consideration is not warranted in this case. From July 14, 2009 to the present, the Veteran does meet the percentage standard of one disability ratable at 40 percent or more with a combined rating of 70 percent or more. However, in accordance with the reasons set forth above, Veteran has not been found to be unemployable by reason of service-connected disabilities at any time throughout the appeals period. Accordingly, a basis for a grant of TDIU on a schedular or extraschedular basis has not been presented at any point during the appeals period. Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs