Citation Nr: 1322832 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 06-21 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the discontinuance of a total disability rating based on individual unemployability due to a service-connected disability, effective February 1, 2006, was proper. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to June 1991. He had additional service in the Army Reserves This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claim was most recently before the Board in December 2012, at which time the Board remanded the claim to the RO via the Appeals Management Center (AMC) for additional development and adjudicative action. In a March 2013 supplemental statement of the case (SSOC), the AMC continued the denial of the claim. The case has now been returned to the Board for appellate review. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. In a November 2004 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective March 15, 2000; the award was based on the evidence showing that the Veteran was unable to secure or maintain substantially gainful employment due to his service-connected disabilities. 3. In a September 2005 rating decision, the RO proposed to discontinue the Veteran's TDIU benefits. 4. In a November 2005 rating decision, the RO terminated the Veteran's TDIU benefits, effective February 1, 2006. 5. Clear and convincing evidence demonstrates that, at the time the TDIU was discontinued, the Veteran was actually employable, that he had been substantially and gainfully employed for at least twelve months prior, that his earned annual income exceeded that established by the U.S. Census Bureau, and that his employment was not marginal. CONCLUSION OF LAW The criteria for restoration of a TDIU, from February 1, 2006, are not met. 38 U.S.C.A. §§ 1155, 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.105(e), 3.343, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 51000, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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). 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). 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. By letter dated in September 2005, the RO advised the Veteran that it proposed to discontinue entitlement to a TDIU. He was advised that his compensation would remain at the present rate for 60 days and he could submit a completed form regarding his employment or other evidence showing why the RO should not discontinue a TDIU. He was advised to submit that evidence within 60 days. He was also informed that he could request a personal hearing. He was advised that if he did not contact the RO within 60 days, the RO would assume that he had no additional evidence to submit and did not want a hearing. The RO would then make a decision using the evidence already of record. The letter also included a discussion of the evidence that was the basis for the proposed termination of entitlement to a TDIU. Pursuant to the November 2005 rating action, entitlement to a TDIU was discontinued, effective February 1, 2006. A subsequent statement of the case (SOC) dated in March 2006 and SSOCs dated in August 2006, April 2009, November 2010, and July 2012 set forth the applicable provisions of 38 C.F.R. § 3.159 pertaining to VA's duties to notify and assist. His claim was later readjudicated, with the most recent adjudication occurring by way of a March 2013 SSOC. The Board finds that the Veteran was properly informed of the criteria for, and authority governing, rating reductions; the evidence needed to continue entitlement to a TDIU; and of his and VA's respective duties for obtaining evidence and to submit evidence and/or information in his possession to the RO. After each document identified above, the appellant was afforded the opportunity to respond. Neither the Veteran nor his representative has indicated there is any other evidence to submit or which needs to be obtained. 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 matters on appeal. Of record are the Veteran's written statements, as well as information from his past and current employers submitted by the Veteran in support of his claim. Also of record and considered in connection with the appeal are the transcripts of the Veteran's RO hearings and various written statements provided by the Veteran. No additional development of the claim, prior to appellate consideration, is required. In the December 2012 Remand, the Board directed the agency of original jurisdiction to obtain all outstanding medical treatment records relevant to the Veteran's claim. The Veteran's electronic claims file reflects that his VA treatment records dated up until January 2013 have been obtained. The December 2012 Remand also directed the agency of original jurisdiction to contact the Veteran and request that he provide any information, to include pertinent records, related to a 2009 incident where he was charged for falsifying unemployment records. In a January 2013 letter, the AMC requested that the Veteran provide information with regards to the 2009 incident. However, the Veteran has failed to respond to this request or otherwise provide any information regarding the 2009 incident. While VA has a duty to assist veterans in obtaining information, there is a corresponding duty on the part of the veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Accordingly, the Board finds that a remand to secure any additional records is not required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that VA has satisfied the duty to notify and the duty to assist and will proceed to the merits of the Veteran's appeal. Legal Criteria Under 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See also 38 U.S.C.A. § 5112(b)(6). The Board notes that the record does not indicate, and the Veteran does not contend, that there has been noncompliance with the procedural requirements for rating reductions. Given the chronology of the process described above, the Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105 for reducing the Veteran's disability rating. The RO notified the Veteran of his rights, gave him an opportunity for a hearing and time to respond, and did not make the reduction effective any sooner than permitted. 38 C.F.R. § 3.105(e). Accordingly, as a preliminary matter it is established that the RO properly complied with the procedural provisions of 38 C.F.R. § 3.105(e). The Board will thus focus on the propriety of the RO's decision to discontinue the Veteran's TDIU. Under 38 C.F.R. § 3.343(c)(1), in reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Under 38 C.F.R. § 3.343(c)(2), if a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the Veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of twelve consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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 a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In assessing the propriety of the RO's decision to discontinue the total disability based on individual unemployability the Board must focus on the evidence of record available to the RO at the time the rating determination at issue was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether actual improvement (or, as here, employability) was shown. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Facts and Analysis Turning to the merits of the claim, the RO granted TDIU benefits in a November 2004 rating decision, effective from March 15, 2000. In granting TDIU benefits, the RO determined that the Veteran's employment since that date appeared to be of a short duration and was not considered to be substantial. At the time of the November 2004 rating decision, the RO considered evidence that the Veteran had difficulty maintaining full time employment for several years since 1991; this evidence included letters indicating that the Veteran had reached agreements with two different employers to resign from his positions at a high school and at an university in 1999 and 2001, respectively. In a September 2005 rating decision, the RO proposed to discontinue the Veteran's TDIU benefits. In the November 2005 rating decision currently on appeal, the RO discontinued the Veteran's TDIU benefits effective from February 1, 2006. According to the RO, the evidence of record at that time showed that the Veteran was employed with C.P.S. as a long-term substitute teacher and that he earned net wages of $31,845 over the school year from September 2004 through June 2005. The RO determined that the evidence showed that the Veteran had worked for this employer, in different positions, since the Fall of 2001 and that his net wages for the past school year exceed the poverty threshold for the year 2004, which was $ 9,827. Thus, the RO concluded that the Veteran was earning a substantially gainful wage and entitlement to a total disability based unemployability was not shown. At the time of the discontinuance, the claims file included a June 2005 letter from C.P.S. relaying that the Veteran was employed as a long term substitute teacher, which was considered a temporary assignment that could be terminated at any given day. The evidence also included a resume submitted by the Veteran in May 2002 reflecting that he had been employed with C.P.S. as a teacher since 2001. Additionally, the record showed the Veteran's December 2004, March 2005, and June 2005 reports during VA medical consultations that he taught in the public school system. In a February 2005 letter, the Veteran's private physician relayed that the Veteran had established, both prior to and since returning from his service during the Gulf War, a solid work record, and the physician noted that the Veteran was currently employed. In October 2005, the Veteran submitted a pay statement showing his bi-weekly income from C.P.S. from September 2004 to June 2005 and in September 2005. This record reflects that, on average, the Veteran earned at a minimum $915 during a two week period, and at a maximum $1,770 during a two week period. He was not paid during July and August of 2005. According to this record, the Veteran earned $31, 845.61 between September 2004 and June 2005, and $3,609.92 in September 2005. For the period from September 2004 to September 2005, the Veteran earned a total of $35,455.53. Thus, the Veteran's income exceeded the poverty threshold for 2004. During a November 2005 hearing before a Decision Review Officer (DRO) at the RO, the Veteran essentially testified as to his belief that his service-connected posttraumatic stress disorder (PTSD) impacted his ability to maintain substantial employment. He stated that he had been unable to hold down a job over the years ever since his discharge from the military, as he had been fired or forced to resign every job he held since his separation. The Veteran testified, however, that he was teaching sixth through eighth grade, and he described the various challenges he faced due, in part, to his lack of training for the position. He indicated that he began employment with the school system during the 2001 to 2002 school year and he had worked for various time periods for this employer since that time. However, he testified that he lost his job during the previous school year because of low enrollment for his class and due to his lack of certification. According to the Veteran, he was rehired just before the start of the school year in August 2005. He explained, however, that he was not paid during school vacations, such as winter break and summer breaks. In response to why he believed he was unemployable, the Veteran testified that his long-term assignment could be terminated at any given time due to such factors as the enrollment of the school or if another teacher who had more qualifications/certification was hired. The Veteran explained that he did not have his teaching certification and was not qualified for the position. He stressed that until he received his certification, he was unemployable in that no other school district would hire him. The Veteran reiterated that he was unemployable, as reflected by his previous history of difficulty maintaining a job. In support of his contention that his psychiatric disability affected his work performance, the Veteran submitted copies of emails exchanges dated in December 2004 between himself and a fellow teacher at C.P.S., which he purports demonstrates his difficulty getting along with other staff members and the challenges he faced in his position as a teacher. The Veteran provided additional testimony regarding his belief that continued TDIU benefits were warranted during a June 2006 DRO hearing. He testified that he had not achieved substantially gainful employment, as he had problems trying to maintain numerous jobs over the years. The Veteran stated that he had been fired or forced to leave from every job. He stated, however, that he completed employment with C.P.S. for the 2005 to 2006 school year as a long-term substitute teacher. The Veteran was unsure if he would be hired for the next year, as he was waiting to see if the school district would hire substitute teachers. He also stated that because he was not certified and not licensed, he was not employable. Regarding the 2006 to 2007 school year, the Veteran testified that his employment was not guaranteed because he was not under contract. He explained that he was not employed by the school system at that time, but that this could change. In an August 2007 letter, the Director of Schools for C.P.S. provided a recommendation for the Veteran in regards to his application for a position with another school district. The Director indicated that at that time, C.P.S. had a shortage of employment opportunities due to the school district's financial situation. In a September 2007 letter, the Veteran reported that, due to the financial situation of the school district, he was no longer employed with C.P.S. In September 2008, the Veteran submitted an August 2008 newspaper article which shows that he was interviewed regarding his work as a special education teacher with C.P.S. The claims file also includes a salary notification letter from C.P.S. informing the Veteran of his new level rate of pay effective from August 2008. According to this document, the Veteran's was set up for a 26 pay plan with 25 checks remaining in the plan. His gross pay amount per check was $2360.61. Thus, the gross amount of pay the Veteran was scheduled to receive over the course of 25 pay checks from August 2008 forward was $59,015.25. A December 2008 VA PTSD examination report includes the Veteran's report that he was employed full time as a special education teacher with C.P.S. and that he had worked for this employer for three years. He indicated that he had difficulties with coworkers and concentration. However, the Veteran reported that he had only missed approximately five to six days of work due to mental health issues. He also reported that he was completing graduate work in special education and was working towards obtaining a graduate degree. A December 2008 VA hands, thumbs, and fingers examination report further reflects the Veteran's report that he worked full time as a school teacher and that he had been in this employment for the previous two to five years. During November 2009 and December 2009 VA medical consultations, the Veteran reported that he was working as a teacher. In a February 2009 letter, the Veteran's private attorney for unrelated matters described his observations as to the Veteran's work history. The attorney reported that following the Veteran's service in the Gulf War, he was unable to consistently sustain the kind of focus and dedication needed to function well in a professional setting. According to his observations, the Veteran was unable to sustain focused, diligent, and organized behavior for any significant period of time. He relayed that sooner or later, the Veteran would become distracted, overly emotional, fearful, paranoid, sullen, withdrawn, and was unable to think clearly or act logically. VA treatment records dated in October and November of 2009 include the Veteran's reports that he worked as a teacher. During a May 2010 VA medical consultation, the Veteran reported that he was pursuing a graduate degree while also teaching. He further reported that he was working full time during an October 2010 VA medical consultation. A November 2010 VA treatment record shows the Veteran's report that he was working full time as an educator in the public school system and that he was working on a master's degree. A February 2011 VA treatment record includes the Veteran's report that he was working full time and attending school. In an August 2011 letter, the Veteran's private psychologist reported that the Veteran had enjoyed moderate success as a teacher and that he had not been fired from a position since he was terminated from employment at an university in June 2002. According to the psychologist, the Veteran had successful interactions with the staff at an elementary school during the 2002 to 2003 school year, which began a positive point of reference for his future professional interactions. During a June 2012 VA PTSD examination, the Veteran reported that he was currently working as a teacher with C.P.S. and that he had worked in this position for the past eight years. He stated that he frequently missed work, approximately once a week, because of "mental health" days when he would "deal with the issues." The Veteran denied any significant periods of unemployment in the previous twelve months. He also relayed an employment history significant for being fired from four out of the five or six jobs he held post-service. The Veteran stated that his longest period of employment was eight years. He described having "somewhat strained" relationships with coworkers and difficulty staying on task and keeping up with daily work activities. The Veteran also reported that he was attending school part time and was working towards obtaining a license to teach reading. He further relayed that he was charged with "falsifying records" of unemployment in 2009, for which he had to do community service. Following a clinical examination and review of the claims file, the examiner opined that the Veteran's service-connected PTSD did not render him unable to secure and maintain substantially gainful employment. The examiner further commented that there was no evidence in the Veteran's work history suggesting that his PTSD symptoms ever significantly impacted his occupational functioning. Lastly, the examiner highlighted that the Veteran was working and going to school part-time, and the examiner commented that neither of these facts was consistent with a claim for TDIU related to PTSD. Considering the pertinent evidence in light of the above, the Board notes, initially, that the pertinent record reflects that, at the time the discontinuance, the Veteran had annual earned income that exceeded the poverty level for the year 2004, as established by the U.S. Census Bureau. As noted above, evidence from his employer C.P.S. indicated that his net income exceed $31,000 for 2004 to 2005. As such, the Board finds that there is clear and convincing evidence of actual employability. Moreover, in numerous statements made prior to and since the November 2005 rating decision, the Veteran has repeatedly indicated that he has been employed full time with C.P.S. as a long-term substitute teacher. This is confirmed by the pay statement from C.P.S. submitted in October 2005 regarding his income in 2004 and 2005, the August 2008 newspaper article featuring the Veteran, the August 2008 salary notification letter from C.P.S., and the Veteran's November 2005 and June 2006 testimony regarding his full time employment. Although the record indicates that the Veteran's employment with C.P.S. was temporarily delayed for the 2007 to 2008 school year, the Veteran's own statements indicate that he has been employed full time with C.P.S. since at least 2005. Indeed, the Veteran most recently reported during the June 2012 VA PTSD examination that he had been employed with C.P.S. as a teacher for the past eight years. Thus, the evidence shows that the Veteran has maintained substantially gainful employment for at least a twelve-month period prior to discontinuance of his TDIU benefits. Here, the Board notes the Veteran's November 2005 testimony indicating that he lost his job with C.P.S. during the previous school year due to low enrollment and his lack of teaching certification. The Board highlights, however, that the C.P.S. pay statements submitted in October 2005 contradicts the Veteran's account in this regard, as it shows that the Veteran earned biweekly income from September 2004 through June 2005. Thus, the Veteran's statements as to his unemployability during the 2004 school year are not deemed credible. See generally, Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). The Board also acknowledges the Veteran's statements as to his belief that his TDIU benefits should be restored because his position as a long-term substitute teacher can be terminated at any time and he would be unable to obtain employment with any other school district. However, by his own statements, the Veteran admits that he has been employed on a full time basis with C.P.S. for the years spanning since 2004. While his position with his current employer may not be guaranteed, the Board emphasizes that TDIU benefits may not be restored merely based on the possibility of future unemployability. The Board again highlights that the question in determining whether TDIU benefits should be awarded is whether the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities, and not whether he is actually employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board also recognizes the Veteran's statements that as a substitute teacher, he is only paid for the days that he actually works. However, the Court has clearly determined that "substantially gainful employment" is not dependent upon the number of hours a veteran actually works. Faust v. West, 13 Vet. App. 342, 356 (2000). In this case, the evidence dated since the time of the November 2005 discontinuance clearly show that the Veteran's income exceed the poverty threshold. Therefore, the Veteran's argument fails in this regard. Additionally, the Board has considered the Veteran's statements that he is unemployable based on his past history of terminations and forced resignations from multiple positions following his discharge from the military. The evidence reflects, however, that the Veteran's has secured and maintained employment with C.P.S. since at least 2004. Thus, although the Veteran may have had difficulty maintaining substantial employment in the past, the evidence of record shows that he engaged in substantially gainful employment within the twelve month period prior to the November 2005 discontinuance of his TDIU benefits, and he has continued to engage in substantially gainful employment since that time. Under these circumstances, the Board finds that there is clear and convincing evidence that, at the time of the discontinuance of a TDIU, the Veteran was actually employable, and that his employment was not marginal. As such, the criteria for restoration of a TDIU, from February 1, 2006, are not met, and the claim for such must be denied. ORDER The restoration of TDIU benefits from February 1, 2006, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs