Citation Nr: 1320184 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 04-04 607 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984. and from December 1985 to August 1987. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2004 rating decision that, inter alia, denied the Veteran's claim for a TDIU. A notice of disagreement (NOD) was received in September 2004 and a statement of the case (SOC) was issued in April 2005. A substantive appeal was received in May 2005. In October 2005, the RO continued the denial of the claim (as reflected in a supplemental SOC (SSOC)). In May 2006, the Veteran and his wife presented testimony during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C; a transcript of that hearing is of record. In November 2006, the Board remanded the claim for TDIU, as well as additional claims then on appeal, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After attempting to complete the requested action, the RO continued to deny each claim that had been remanded (as reflected in a June 2009 SSOC). In September 2009, the Board again remanded the claims that were then on appeal, to include the claim for a TDIU, to the RO via the AMC for further action, to include additional development of the evidence. After accomplishing further action, in a June 2011 rating decision, the RO/AMC awarded service connection for a psychiatric disability (major depressive disorder as secondary to the service connected aseptic meningitis with chronic headaches), representing a full grant of that benefit sought in connection with that claim. However, the AMC continued to deny the remaining claims then on appeal, to include for a TDI (as reflected in an August 2011 SSOC), and returned the matters then on appeal to the Board for further consideration. In December 2011, the Board again remanded the claims then on appeal, to include the claim for a TDIU, to the RO via the AMC for further action, to include additional development of the evidence. After accomplishing further action, the RO/AMC continued to deny the claims on appeal, as reflected in a September 2012 SSOC, and returned the matters then on appeal to the Board for further consideration. In January 2013, the Board denied each issue then on appeal, with the exception of the claim for a TDIU, which was remanded to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the RO/AMC continued to deny the claim for TDIU-the only issue remaining on appeal before the Board-(as reflected in a March 2013 SSOC), and returned the matter to the Board for further consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim remaining on appeal have been accomplished. 2. Service connection is in effect for aseptic meningitis with chronic headaches (rated as 10 percent disabling) and major depressive disorder as secondary to aseptic meningitis with chronic headaches (rated as 30 percent disabling). The Veteran's combined rating is 40 percent. 3. The Veteran reported education through one year of college and work experience as a truck driver. 4. The ratings for the Veteran's service-connected disabilities do not meet the minimum percentage requirements for an award of a TDIU, and theses disabilities have not been shown to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 (West 2002 & Supp. 2012)) 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) (2012). 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. 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, to include the AMC). 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 rating cases, which includes claims for a TDIU, a claimant must be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this appeal, post-rating letters, most recently dated in January 2013, provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for a TDIU. These letters also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. These letters informed the Veteran to submit any evidence in his possession pertinent to the claim, and 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, consistent with Dingess/Hartman. After issuance of the above-described notice, and opportunity for the Veteran to respond, SSOCs, most recently dated in March 2013, reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the aforementioned notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of VA and private treatment records, as well as records\from the Social Security Administration (SSA). Also of record are reports from VA examinations, most recently those from March 2013 VA examinations that include, as requested in the January 2013 remand, opinions as to whether the Veteran's service connected disabilities render him unemployable. On this record, and, as explained in more detail, below, the Board finds that there has been substantial compliance with the Board's prior remand directives, and that no further RO action in this regard is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeal are various oral and written statements provided by the Veteran, and by his representative, on his behalf. In particular, the Board hearing transcript reflects that the duties to fully explain the issue and to suggest the submission of evidence that may have been overlooked were fulfilled. See 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the duties imposed by the VCAA have been considered and satisfied with respect to the claim addressed herein. 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 the claim herein decided. 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 with respect to the claim on appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter remaining on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 59 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes, at the outset, that it has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the Virtual VA. (The Virtual VA file contains VA clinical records dated through August 2012 that are documented to have been considered in the September 2012 SSOC). 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 of record. 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 fails to show, as to the claim. 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, 3.34l, 4.16(a). In this case, service connection is in effect for aseptic meningitis with chronic headaches (rated as 10 percent disabling) and major depressive disorder as secondary to aseptic meningitis with chronic headaches (rated as 30 percent disabling). The Veteran's combined service connected disability rating is 40 percent. Thus, he does not meet the minimum TDIU percentage requirements because he does not have one service-connected disability rated 40 percent or more and his service-connected disabilities constitute a total disability of less than 70 percent. 38 C.F.R. § 4.16(a) . However, entitlement to a total rating, on an extra-schedular basis, may nonetheless be established, in exceptional cases-and pursuant to specifically prescribed procedures-when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. §§ 3.321(b)(a) and 4.16(b). The central inquiry is whether the Veteran's service connected disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran's education, special training, and previous work experience, but not to his age or to the impairment resulting from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; 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 can find employment. Van Hoose, 4 Vet. App. at 363 . In this case, the Veteran, to include in his VA Form 21-8940 (Veteran's Application For Increased Compensation based on Unemployability) filed in February 2013 and in comments to examiners, has reported employment as a truck driver. He described education through one year of college on his VA Form 21-8940 filed in February 2013. With respect to the Veteran's employment status, in a submission to SSA filed in September 2000, the Veteran reported that he lost his job as a truck driver due to disability. At that time, he reported that he could not work because he was in pain "all the time," and could not stand for any period of time. He described the pain as being "[a]ll over but concentrated in [my] back, sides, [and] legs. In statements provided in an SSA application filed in August 200, the Veteran indicated that it was back problems that were preventing him from being able to work; that these problems first bothered him in February 2000; and that he worked in pain until the problems rendered him unable to work in May 2000. Also relevant to the Veteran's employment status are reports from a July 2000 visit to a VA orthopedic clinic in which the Veteran informed the examiner that he quit work as a truck driver two months prior to this visit due to back pain that radiated to his legs. During a June 2001 VA examination, the Veteran reported that he had to quit his job as a truck driver in May 2000 because prolonged sitting resulted in numbness in his legs. [As service connection for low back and bilateral leg disability, to include as secondary to aseptic meningitis, was denied by the January 2013 Board decision, entitlement to TDIU could not be granted on the basis of this reported back/leg disability]. With respect to the impact of psychiatric problems on employment, a private psychologist concluded in October 2000 that the Veteran's adjustment disorder with mixed emotional features did not result in the total inability to work. However, a May 2005 statement from a VA psychiatrist, who reported that the Veteran was seen at that time for treatment of post-traumatic stress disorder (PTSD), concluded that the Veteran was totally and permanently disabled and unemployable. In the January 2013 remand, the Board noted that the record at that time, and as summarized above, did not include any actual opinion addressing whether the Veteran was unemployable solely as a result of service-connected disability/ies. The Board noted that there were several annotations in the clinical records (such as in the May 2005 report referenced above) as to the Veteran being found to be unemployable due to PTSD, a nonservice connected disability, but that there were clinical records indicating that the Veteran was unemployable due to psychiatric problems that included includes references to symptoms which could be attributed to his service-connected depressive disorder. However, the Board emphasized that no medical professional had indicated whether it was possible to distinguish impairment attributed to service-connected disability from that attributed to nonservice-connected psychiatric disability, and that while the record included some suggestion that symptoms associated with his service-connected disabilities might adversely impact his employability, there was no medical opinion in this regard. In light of the inadequacies in the record as set forth above, in the January 2013 remand, requested that the Veteran be afforded a VA examination that included a medical opinion as to whether the Veteran's service-connected disabilities, either individually or in concert, rendered him unable to obtain or retain substantially gainful employment. The requested examination and opinion was completed by way of two VA examinations in March 2013, one focused on the service connected headaches and the other on the service-connected psychiatric disability. The reports from each examination document review of the claims file. The report of the March 2012 examination for evaluating the Veteran's headaches reflects the Veteran reporting headaches for many years that had worsened recently and typically lasted several hours. The headaches were said to occur three times a week with nausea as an accompanying symptom. Medication was said to help but not result in sufficient improvement or prevent the headaches from recurring. The headaches were described as being pounding in type with a pain level of 3 out of 10 when they occur. The physical examination was normal and the impression was mixed migraine/muscle contraction headaches. Non-headache symptoms were said to include changes in vision and the Veteran was said to have characteristic prostrating attacks of migraine headaches occurring more frequently than once a month. The examiner indicated that the Veteran's headaches had impacted his ability to work (4 or 5 days per month) based on his report of last working in approximately 1998 or 1999 as a truck driver and suffering from decreased concentration and problems seeing to the point that he "couldn't do anything." However, the examiner ultimately concluded that it was less likely than not that the Veteran's septic meningitis with chronic headaches rendered him unable to obtain or retain substantially gainful employment. The examiner indicated that sedentary employment "should be doable," but that his ability to perform heavy labor was "less likely[,] particularly during a migraine." The report of the March 2013 VA psychiatric examination shows the Veteran reporting that he was continuing to reside in this own home with his girlfriend of many years. He reported having a stable relationship with her, and he also described a good relationship with his four grown children who live elsewhere. The Veteran stated that he performs chores on his three acre property and occasionally does work with a gunsmith that he enjoys and sometimes is compensated for. He also reported that he is friends with some local police officers. The Veteran stated that he is continuing his outpatient therapy and that the medication for his psychiatric problems was helpful. On mental status examination, the examiner noted that the Veteran had fair personal hygiene; no psychomotor agitation or retardation; a pleasant, polite and cooperative attitude; fluent and coherent speech; a good mood; a mood congruent affect; no hallucinations; spontaneous and goal directed thought flow; no delusions or paranoia; no suicidal or homicidal ideation; an alert level of consciousness; orientation to three spheres; grossly intact memory; good attention; average intelligence; and fair judgment. Symptoms for VA rating purposes were said to be limited to depressed mood and suspiciousness. The examiner ultimately concluded that it was less likely than not that the Veteran's depressive disorder rendered the Veteran unable to secure or maintain substantially gainful employment. The examiner noted that the Veteran's symptoms were mild and caused no more than slight occupational impairment, and that there were no co-existing disorders at the present time, to include PTSD. As each examiner who interviewed the Veteran in March 2013 provided a detailed opinion, based on his review of the claims file and examination and interview of the Veteran, the Board finds that the opinions rendered by these examiners-that the Veteran is not unemployable due solely to either service connected disability-is 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, while the Board acknowledges, as indicated in the last remand, the existence of clinical records indicating that the Veteran was unemployable due to psychiatric problems that included references to symptoms which could be attributed to his service-connected depressive disorder, the probative value of these clinical records is outweighed by the competent, probative definitive opinion evidence on the question of whether service-connected disability, alone, renders the Veteran unemployable Notably, neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any other definitive opinion finding that service connected disability, alone, precludes employment. Furthermore, to whatever extent the Veteran and/or his representative attempt(s) to establish the Veteran's entitlement to a TDIU on the basis of lay assertions, alone, the Board emphasizes that neither is shown to have training or expertise in medical or vocational matters. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) and Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), 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, supra. ORDER The claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs