Citation Nr: 1320679	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  10-00 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from June 1952 until April 1958.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  During the course of the appeal, jurisdiction of the case was transferred to the RO in Atlanta, Georgia, and that office certified the appeal to the Board.

In July 2009, the Veteran testified at a hearing at the RO before a local Decision Review Officer (DRO).  A transcript of the hearing is in the claims file.

In his March 2011 substantive appeal (on VA Form 9), the Veteran also requested a hearing at the RO before a Veterans Law Judge of the Board, commonly referred to as a Travel Board hearing.  However, since he failed to appear for the hearing in October 2011 and did not show good cause for not appearing, the hearing request is considered withdrawn.  38 U.S.C.A. § 20.704(d) (West 2002).

In April and December 2012, the Board remanded the claim for further development - including to have the Veteran undergo a VA compensation examination for a medical opinion concerning whether he is employable and to obtain copies of records, including medical, pertaining to his application for disability benefits from the Social Security Administration (SSA), which apparently was denied but nonetheless relevant to his TDIU claim at issue in this appeal.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  The Veteran has a 6th grade education and had approximately 37 years of farming experience prior to his retirement.

2.  He has one service-connected disability of left arm amputation at the elbow, which has been rated as 70-percent disabling effectively since April 1958, so since the conclusion of his military service and during the entire time he worked in farming.

3.  His service-connected left arm disability does not preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal employment in comparison - that is, when considering his level of education, prior work experience and training, but not his advancing age and disabilities that have not been determined to be related to his military service, i.e., service-connected.


CONCLUSION OF LAW

The criteria are not met for a TDIU.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) and its implementing regulations provide that VA is to notify a claimant and his/her representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim upon receipt of a complete or substantially complete application.  As part of the notice, VA is to specifically inform the claimant and his/her representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).

When the claim arose in the context of the Veteran trying to establish his/her entitlement to service connection for the claimed disability, then the VCAA notice must apprise him/her of all five elements of the claim:  (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).  

If, instead, the claim arose in another context, such as the Veteran trying to obtain a higher rating for a disability already determined to be service connected, so including a TDIU since a type of increased-rating claim, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise the Veteran that, to substantiate his claim, he/she must submit medical or lay evidence showing the effect any worsening in his disability has on his/her employment and daily life.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Rather, VA need only provide generic notice advising him/her of the evidentiary and legal criteria for establishing his/her entitlement to greater compensation.  Id.


Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his/her claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this case, the content of an August 2007 letter reflects compliance with the pertinent statutory and regulatory provisions and case law noted above.  In this respect, the letter provided notice of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence.  He also received notice consistent with Dingess as concerning the "downstream" disability rating and effective date elements of his claim.

Also, pursuant to his request, he was afforded a hearing at the RO before a local DRO in July 2009.  According to 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the individual conducting the hearing (hearing officer)  to:  1) explain fully the issues and 2) suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the presiding hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the presiding hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

Here, the DRO identified the issue on appeal and during the course of the hearing noted the importance of getting all of the necessary information regarding the claim.  However, since the Veteran's representative elicited testimony regarding the Veteran's difficulty in obtaining employment and the existence of potentially relevant records from the SSA, it was apparent they had actual knowledge of the type of evidence and information that potentially could be advantageous to this TDIU claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).  It therefore was unnecessary for the DRO to engage in additional questioning.  Furthermore, the Veteran and his representative did not raise any new issues pertaining to this claim during the course of the hearing.  See Bryant, 23 Vet. App. at 497-98.  Thus, the Board finds that the presiding hearing officer's two-fold duty was sufficiently satisfied.  

The Veteran has not alleged there was any deficiency in the conducting of that hearing, including in relation to the presiding hearing officer's duties under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98.  Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice the claim.  In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability (in a claim concerning entitlement to service connection), the purpose of 38 C.F.R. § 3.103(c)(2) nonetheless had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit.  The Board also notes that the Veteran was scheduled for an additional hearing - this time to occur before a Veterans Law Judge of the Board in October 2011, pursuant to his request, which would have allowed for additional testimony and further inquiry into any additional evidence needed to support his claim.  But he failed to appear for this additional hearing and, as mentioned, did not provide any good-cause explanation for his absence or request to have the hearing rescheduled.  38 C.F.R. § 20.704(d).

Nevertheless, additional development was undertaken in light of the testimony provided during the earlier hearing in July 2009.  In this respect, the April 2012 Board remand instructed the Veteran to be given an examination for a medical opinion concerning his employability and the December 2012 Board remand sought the records concerning the SSA's disability determination.  While SSA records are not altogether controlling on VA determinations, owing to the fact that these Federal agencies have different requirements insofar as when one is considered disabled or unemployable, the SSA records may be "pertinent" to VA claims.  See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  Hence, when VA is put on notice of the existence of SSA records that, as here, are potentially relevant, VA must try and obtain the records before proceeding with the appeal.  See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim).  See also Lind v. Principi, 3 Vet. App. 493, 494 (1992).

But in light of the opportunity given for another hearing and the development that has been undertaken over the course of the appeal, including in the years since the July 2009 DRO hearing, the Board finds that any deficiency in that hearing was non-prejudicial.

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012).

All evidence the Veteran identified as being potentially pertinent to his claim was obtained.  His service and post-service treatment records are contained in the claims file.  His electronic ("Virtual VA") records are also available for review.

As noted, the Board's April 2012 remand of this claim was to obtain a medical opinion on this determinative issue of employability since, as the Court had pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).  The medical opinion resultantly provided in May 2012 is responsive to this determinative issue of employability, so in compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board commits error as a matter of law in failing to ensure this compliance.)

Following the Board's December 2012 remand to obtain the SSA records, the RO/AMC received a response that those records have been destroyed.  Therefore, there also is demonstrated compliance with this additional remand directive, certainly substantially and to the extent possible given that these records apparently no longer exist.  38 C.F.R. § 3.159(c)(2) and (e)(1).  A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand Order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance."  Id.  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand).  See, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002)).  Here, there was an acceptable level of substantial compliance.

Given all that has transpired, it is difficult to discern what additional guidance VA could have provided the Veteran as to what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially, as here, another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss in exhaustive detail each and every piece of evidence he has submitted or which VA has obtained 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 and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

Legal Criteria and Analysis

Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or disabilities that have not been service connected.  See 38 C.F.R. §§ 3.341(a), 4.16(a).  Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation).  

Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."  Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment," is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established.  See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  VAOPGCPREC 75-91.  Thus, the criteria include a subjective (not just objective) standard.  See id.  VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  Id.   

Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment."  The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility.  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See also Beaty v. Brown, 6 Vet. App. 532, 537 (1994); Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

But all of that said, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's Rating Schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012).

The Board must consider the effects of the Veteran's service-connected disabilities in the context of his employment and educational background.  See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992).  In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), like in Friscia and Ferraro already cited, the Court indicated the Board cannot deny the Veteran's claim for a TDIU without producing evidence, as distinguished by mere conjecture, that the Veteran can perform work that is substantially gainful versus just marginal.

In order to satisfy the criteria for schedular consideration of entitlement to a TDIU, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more.  See 38 C.F.R. § 4.16(a).  If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more.  Id.  Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements.  Id.  


Throughout the entire appeal period the Veteran had had one service-connected disability, which has been rated as 70-percent disabling.  Therefore, the percentage requirements of 38 C.F.R. § 4.16(a) are satisfied for schedular consideration of a TDIU, that is, without having to resort to the special extra-schedular provisions of § 4.16(b).

Although the Veteran stated on his claim form that he became too disabled to work in 1957, he also indicated that he had worked continuously, albeit self-employed, as a farmer from 1970 through 2007.  He testified in July 2009 that in his earlier years after he had separated from service he was unable to find outside employment because no one would hire him due to the fact that he had lost part of his left arm (referring to the below-the-elbow amputation).  During his March 2012 VA compensation examination, he also reported working as a catalog salesman from 1960 to 1980 and as a cattle farmer for 30 years until selling his farm and retiring 3 years prior to that evaluation.  See the May 2012 VA compensation examination report.

Based on his various statements, he admittedly was able to work for many years after separating from service - despite his unfortunate disability - and by all indications he is no longer working simply because of his retirement, not instead because his service-connected disability precluded him from continuing to work.  He did not allege that his retirement was due to his inability to perform the activities necessary to continue cattle farming and, in fact, he indicated that he had been able to work successfully on the farm, bale hay, and drive a tractor.  See the May 2012 VA compensation examination report.  This of course is not to say that his 
below-the-elbow amputation did not adversely impact his ability to work since this type of disability obviously would have some detrimental effect on his capabilities to do certain things.  But, importantly, it is not shown that his disability was a preclusion to him working, or continuing to work, and as mentioned the 70 percent rating he has for this disability (and which he has had for many years now) is itself recognition that his disability affects his employment.  Indeed, by virtue of a rating at this level (meaning in the higher end of the rating spectrum), this is concession that his disability significantly affected his work, just, again, is not tantamount to saying it precluded it.

As noted, he was provided a VA compensation examination in May 2012 for a medical opinion concerning his employability.  Taking into consideration a review of the claims file, the reported history, and the results of the objective physical examination, the evaluating physician concluded the Veteran's left forearm (i.e., below-the-elbow) amputation would not preclude employment - albeit with accommodations for having just one forearm.  The examiner acknowledged that the amputation impacted the Veteran's ability to work in that he had a more difficult time getting jobs to accept him due to having one arm, but that he nonetheless was able to work his own farm, drive a tractor, and bale hay.  The opinion was offered without regard to the Veteran's advanced age or his nonservice-connected disabilities of coronary artery disease, prostate cancer, carotid stenosis, diabetes mellitus, and hypertension.  The examiner reasoned that, with work accommodations for having one forearm, the Veteran would be able to engage in meaningful employment.  He reiterated the Veteran successfully had worked his own farm for 30 years until selling it and retiring, which showed he was able to work even with one arm.  This opinion, though obviously unfavorable to the claim, is particularly probative because the rationale supporting the opinion is fully explained.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Again, this VA medical opinion and this decision based on that opinion should not be taken as trying to trivialize the Veteran's disability, indeed, far from it.  But simply, as a whole, the evidence in this case establishes he does not meet the criteria for a TDIU.  Although he has a limited educational background, with only a grade school education according to his application for TDIU (VA Form 21-8940), he is also shown to have worked steadily and satisfactorily as a farmer for many years.  He has not stated nor does the record indicate that his retirement from farming was due to his service-connected disability.


Medical records from 2007 to 2009 do not show he received frequent treatment for his amputated left forearm.  In fact, the VA compensation examiner noted that, other than a scar that was not painful, the Veteran did not have any pertinent physical findings, complications, conditions, and signs or symptoms related to the left forearm amputation.  The disability had no aggravating factors, there was no pain associated with the disability, no medication taken, and no physical therapy needed.  The physician also noted that VA treatment records showed he had not reported any complaints regarding his left arm for several years and that the amputation was on the nondominant arm.  Thus, while admittedly limiting, the service-connected left forearm amputation is not shown to preclude him from securing and maintaining substantial gainful employment.

Accordingly, the preponderance of the evidence is against entitlement to a TDIU.  Consequently, the benefit-of-the-doubt rule does not apply, and this claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55.  


ORDER

The claim for a TDIU is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs