Citation Nr: 1322491 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 12-31 740 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active military service from February 1941 to October 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran was scheduled to appear at a videoconference hearing before a Veterans Law Judge to be held in June 2013. However he failed to appear for this hearing, and has not requested it be rescheduled; nor has he provided good cause for his failure to appear. The Board shall thus proceed with adjudication of this matter. (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).) FINDING OF FACT The Veteran's service-connected paranasal sinus disease (chronic sinusitis) and duodenal ulcer with gastroesophageal reflux and irritable bowel syndrome do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. Through a May 2012 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the May 2012 notice letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the May 2012 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). These requirements were met by the aforementioned May 2012 notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the May 2012 notice letter. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's post-service treatment records and correspondence from his former employer have been associated with the file. In addition, the Veteran was provided a VA medical examination pursuant to his claim in June 2012; report of that examination has been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination is adequate, as it is predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and reflects that the examiner conducted a full examination of the Veteran, which included information necessary to apply the pertinent criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his claim. Otherwise, neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis 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 service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). In determining whether a veteran is indeed unemployable, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service connected for (1) chronic sinusitis evaluated as 50 percent disabling; (2) duodenal ulcer with gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS), evaluated as 30 percent disabling. His combined disability evaluation is 70 percent. Thus, the Veteran meets the threshold rating requirements for entitlement to a TDIU. 38 C.F.R. § 4.16(a). The Veteran filed his claim for TDIU in May 2012. In this claim he reported having worked as an electrical inspector for a municipality, and he reported that he became too disabled to work in July 2008. He claimed that his paranasal sinus disorder in particular, made him too disabled to work. He indicated that he graduated high school and had one year of college. Earlier records reflect that in the early 1950's he worked as an electrician shortly after service. As to the issue of whether a TDIU is warranted in this case, the Board notes that the relevant evidence of record includes statements from the Veteran, and several VA examination and opinion reports, as well as VA outpatient treatment reports and private treatment records. VA treatment records from 2010 to 2011 make note of the service-connected disorders in the problem list, but also reveal that he has multiple other medical problems of varying severity and primarily address these other medical problems. He was noted to complain of his sinuses causing congestion in a March 2011 record that addresses other medical issues. A December 2011 VA examination that addressed complaints of the loss of smell and taste confirmed that the Veteran had a partial loss of his taste and smell, both found to be caused by his paranasal sinusitis, but these were considered symptoms commonly experienced by those with chronic sinusitis and congestion, and were not separately diagnosed disorders. VA records from 2012 reveal that in January 2012, an addendum to a December 2011 VA examination to address hearing loss and tinnitus issues revealed that the Veteran reported on examination that he had sinus pressure with increased drainage along with ear fullness. He reported relief using saline treatment. Examination revealed septal deviation to the right and inflamed membranes and mucosa along with tender maxillary sinuses. He was treated for acute sinusitis and otitis media with antibiotic and was to report back to ENT in 6 weeks. On follow-up by otolaryngology in February 2012, he was noted to have been treated for sinusitis and otitis media with antibiotic. He reported feeling about the same, with nasal congestion and significant crusting. Saline spray helped a little; irrigation with saline gel produced little relief. He also complained of puffiness around the eyes and dull pain under the eyes for months. Examination revealed minimally inflamed mucosa of the nose with crusting, narrow passages and slight maxillary sinus tenderness. The eyes had drooping lids and puffiness. The impression was chronic sinusitis and periorbital puffiness. Plans included a CT scan. The rest of the records addressed problems with other non-service-connected medical issues. An April 2012 VA examination for chronic sinusitis (both maxillary and frontal) recorded the Veteran's alleged problems with near chronic sinusitis. His symptoms also included headaches, pain and tenderness of affected sinus, purulent discharge or crusting. His headaches were daily, behind his eyes and across the forehead, as well as pain in the maxillary sinus area. He took pain medication three times a day for his headaches, which did not help much. He was unable to take Ibuprofen due to IBS. There was daily crusting and congestion treated with saline spray and lubricating gel. This problem was very uncomfortable. He had nose bleeds about once a week. He had non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting, twice in the past 12 months. There were no incapacitating episodes requiring bed rest or treatment by a physician. He had no history of surgery for this and did not have complete obstruction on either side. He did have more than 50 percent obstruction of the nasal passage on both sides and permanent hypertrophy of the nasal turbinates. He had no nasal polyps and no symptoms affecting the larynx or vocal cords. CT findings revealed an impression of similar mild paranasal sinusitis and enlarging left maxillary radicular periapical cyst. Regarding functional impact, the examiner opined that the Veteran's problems with sinus, nose, throat, larynx or pharynx did not impact his ability to work. He was noted to have daily symptoms of sinus pressure, headaches, nasal crusting and congestion. He was treated approximately twice a year for acute sinus infections. A June 2012 VA TDIU examination noted in general that only the service-connected disorders were examined, but also noted the Veteran to have additional conditions that affected his ability to work. He had osteoarthritis that caused pain and limited his mobility. He also had coronary artery disease (CAD) and chronic kidney disease, each limiting the Veteran by causing fatigue and lack of endurance. The June 2012 TDIU examination of the Veteran's gastrointestinal disorders including GERD, IBS and ulcer disorder addressed all three of these disorders. Regarding GERD, he took continuous medication (Ranitidine) for it. He reported that, if he eats too late at night or eats spicy foods, "I have a blow torch." Signs and symptoms were persistently recurrent episodes of epigastric distress, pyrosis (heartburn), reflux, regurgitation. He also had sleep disturbances caused by reflux about 4 or more times per year, that averaged 1-9 days duration. He also had mild nausea frequency in 2 episodes per year, lasting less than 1 day. He had no vomiting or other symptoms such as bleeding or esophageal stricture or spasm or acquired diverticulum. He had no other pertinent physical findings or diagnostic testing other than complete blood count. The esophageal conditions did not impact his ability to work. The examiner concluded that this did not preclude him from either physical or sedentary employment. The examination of his ulcer condition reflected that he reported that he cannot discern his duodenal ulcer symptoms from his GERD symptoms, and took the same medication. His frequency and duration of episodes from his ulcer were the same as for GERD. No other pertinent findings differing from those regarding GERD were given. As with the GERD, the ulcer condition was said not to preclude the Veteran from either physical or sedentary employment. Regarding his IBS, he took continuous medication in the form of stool softeners and bulk forming medication as needed, depending on the symptoms. He had alternating diarrhea and constipation. The constipation required the aforementioned medications. He described the constipation alternating with a few days of diarrhea. There was no predictable pattern. He also reported abdominal distension and felt bloated half the time. He also reported intermittent dry heaves and episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. He had frequent episodes of bowel disturbance with abdominal distress with 7 such episodes in the past 12 months. He denied weight loss or malnutrition. He did have a history of malignancy (colon cancer) with treatment including surgery and chemotherapy. There were no other pertinent physical findings. Regarding this condition's impact on his ability to work, it was felt that this would limit the Veteran by the inconsistent and urgent nature of needing a bathroom when the condition flares up, but it does not preclude employment. This condition was said not to preclude either physical or sedentary employment. The report of the June 2012 TDIU examination of the sinuses noted the same symptoms and diagnosis as given at the April 2012 VA sinus examination. He was noted to have non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge over the past 12 months, with 3 such episodes. He had no incapacitating episodes. He had no history of surgery or chronic laryngitis. Regarding his deviated septum, he reported that he did not have at least 50 percent obstruction of the nasal passages on both sides due to traumatic septal deviation. He had no neoplasms, scars or other pertinent findings. The CT scan of February 2012 gave an impression of mild paranasal sinus disease, enlarged left maxillary radicular periapical cyst. He had no other significant findings. Regarding functional impact, the examiner opined that his sinus, nose, throat, larynx or pharynx conditions do impact his ability to work. The impact was from fatigue and occasional shortness of breath, which will preclude physical but not sedentary employment. He was noted to have been an electrical inspector. Upon consideration of the above evidence, the Board finds that the evidence does not establish that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected sinus disorder and gastrointestinal disorder. Although the objective evidence demonstrates that the Veteran may be limited in the type of employment he would be able to engage in, it does not support a finding that the Veteran is in fact unemployable. Specifically, the VA examiner in the June 2012 VA examination concluded that the Veteran would be able to engage in sedentary employment but not physical employment due to some limitations caused by his sinus disease and his IBS symptoms. His former occupation of electrical inspector is neither shown, nor alleged to be physical in nature. The Board has considered the Veteran's assertion that he is unable to work due to his sinus and GI symptoms, but finds that the VA examiner has accounted for this, conceding that he would need work alterations such as accessibility to bathroom facilities. The examiner further pointed out other major medical problems that are not service connected have a major impact on the Veteran's employability. As stated above, the fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. Rather, the ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. The Board finds, in the instant case, that the evidence weighs against a finding that the Veteran is unable to perform the physical and mental acts required by all types of employment. Rather, it is the opinion of the VA examiner that the Veteran would be able to engage in sedentary employment if offered reasonable accommodations. The Veteran has provided no evidence to suggest that any such necessary accommodations had been denied to him or would preclude him from obtaining employment. For the foregoing reasons, the Board finds that entitlement to a TDIU rating 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 Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Entitlement to TDIU is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs