Citation Nr: 1323006 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 06-24 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for diabetes mellitus (DM) associated with herbicide exposure, assigning a 20 percent evaluation effective March 22, 2004; continued a 30 percent evaluation for residuals of a left foot injury with traumatic arthritis and a 40 percent evaluation for residuals of a fracture f the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy; denied service connection for hypertension; and denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In July 2005, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in July 2006. In August 2010, August 2011, and January 2013 decisions, the Board denied the Veteran's claims for increased ratings for his left foot disability, DM, and cervical spine disability. In the same decisions, the Board also remanded the Veteran's claims for TDIU Appeals Management Center (AMC) for further evidentiary development, including providing additional notice, attempting to obtain any outstanding private and VA treatment records, and providing the Veteran with additional VA examinations. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC sent the Veteran letters in September 2010, September 2011, and January 2013 asking him to identify any additional private treatment records or provide any additional relevant evidence. The AMC also obtained associated updated VA treatment records with the claims file and afforded the Veteran VA examinations to evaluate his service-connected disabilities and their effect on his employability in October 2010, December 2011, and March 2013. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. By a rating decision issued in March 2013, the Veteran was awarded a 100 percent (total) schedular evaluation from March 1, 2013. Under VA law, the assignment of a 100 percent evaluation for a service-connected disability does not necessarily render moot a TDIU claim. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran's claim for TDIU remains on appeal, even though a 100 percent schedular evaluation has been awarded. FINDINGS OF FACT 1. From March 22, 2004 to October 5, 2009, the Veteran was service connected for diabetes mellitus (DM), right upper extremity and left upper extremity radiculopathy, each evaluated as 20 percent disabling; residuals of a left foot injury with traumatic arthritis, evaluated as 30 percent disabling; and, residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, evaluated as 40 percent disabling; the combined rating was 80 percent. with consideration of the bilateral factor. 2. From October 6, 2009 to February 13, 2012, posttraumatic stress disorder (PTSD) was added to the Veteran's service-connected disabilities, and his combined rating was 80 percent, with consideration of the bilateral factor. 3. From February 14, 2012 to February 28, 2013, the Veteran's service connected disabilities resulted in a combined 90 percent rating, with consideration of the bilateral factor. 4. From March 1, 2013 to the present, the Veteran's service connected disabilities result in a combined rating of 100 percent, with consideration of the bilateral factor. 5. The Veteran has completed one year of college and is currently employed fulltime as a security officer; he has been employed full-time throughout the pendency of this appeal. 6. The Veteran's service-connected disabilities are not of such severity as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a total disability rating based on individual unemployability are not met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to the initial adjudication of the Veteran's claim, letters dated in April 2004 and September 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, the September 2011 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the September 2011 letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him. After he received the adequate notice letter in September 2011, he was provided an opportunity to respond with additional argument and evidence and the claim was readjudicated in June 2012 and March 2013 supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has at no time referenced any private or other outstanding treatment records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The AMC provided the Veteran with VA examinations to address his service-connected disabilities and employability in May 2004, October 2010, December 2011, February 2012, and March 2013. The examiners reviewed the claims file and provided thorough physical examinations. The examiners' conclusions were based on the evidence of record and supported by a sufficient rationale. Therefore, the Board finds that the examinations of record are adequate to decide the claim for TDIU. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he is unemployable as a result of his service-connected disabilities. Specifically, he has argued that his orthopedic disabilities forced him to retire from his job as a security officer and that he may be forced to retire from his present job in the future as a result of his impatience. Therefore, he believes that a TDIU is warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Disabilities resulting from a common etiology or affecting a single body system are considered one disability for the purpose of reaching the 60 percent single disability or 40 percent disability in combination with others. See 38 C.F.R. § 4.16(a)(2)-(3) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2012). The Veteran filed his claim for TDIU on March 22, 2004. In a January 2011 rating decision, he was granted service connection for posttraumatic stress disorder (PTSD) with no change of his combined rating of 80 percent. In June 2012 and March 2013 rating decisions, he received increased ratings for his PTSD and bilateral upper extremity radiculopathies, increasing his combined rating to 90 percent as of February 14, 2012 and 100 percent as of March 1, 2013. From March 22, 2004 to October 5, 2009, the Veteran was service connected for DM, right upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, and left upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, each evaluated as 20 percent disabling; residuals of a left foot injury with traumatic arthritis, evaluated as 30 percent disabling; and residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, evaluated as 40 percent disabling. With consideration of the bilateral factor, his combined rating was 80 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012); see also 38 C.F.R. § 4.26 (2012). From October 6, 2009 to February 13, 2012, the Veteran was service connected for PTSD, evaluated as 10 percent disabling; DM, right upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, and left upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, each evaluated as 20 percent disabling; residuals of a left foot injury with traumatic arthritis, evaluated as 30 percent disabling; and residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, evaluated as 40 percent disabling. With consideration of the bilateral factor, his combined rating was 80 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.25; see also 38 C.F.R. § 4.26. From February 14, 2012 to February 28, 2013, the Veteran was service connected for DM, right upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, and left upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, each evaluated as 20 percent disabling; residuals of a left foot injury with traumatic arthritis, evaluated as 30 percent disabling; residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, evaluated as 40 percent disabling; and PTSD, evaluated as 70 percent disabling. With consideration of the bilateral factor, his combined rating was 90 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012); see also 38 C.F.R. § 4.26 (2012). As of March 1, 2013, the Veteran is service connected for DM, evaluated as 20 percent disabling; residuals of a left foot injury with traumatic arthritis and right upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, each evaluated as 30 percent disabling; residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy and left upper extremity radiculopathy associated with residuals of a fracture of the cervical spine with traumatic arthritis and disc herniation at C6-7 with left radiculopathy, each evaluated as 40 percent disabling; and PTSD, evaluated as 70 percent disabling. With consideration of the bilateral factor, his combined rating was 100 percent according to Table 1 of 38 C.F.R. § 4.25. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.25; see also 38 C.F.R. § 4.26. For the entire period on appeal, the Veteran has had at least one single disability rating of 40 percent and a combined rating of 70 percent or more. As such, he meets the percentage rating standards for TDIU for the entire period on appeal. See 38 C.F.R. § 4.16(a) (2012). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. Having reviewed the record, the Board finds that the Veteran is employed full-time, as of the date of VA examination in March 2013, and has been employed at that same job throughout the pendency of this appeal. According to a December 1999 TDIU application completed by the Veteran, he has completed one year of college including classes in law enforcement. He reported a work history in law enforcement and security. Various VA treatment records, VA examination reports, and statements from the Veteran attest to his fulltime employment as a security officer at a middle school throughout the appeals period. The Veteran has at no time contended that he presently unemployed. Rather, he argues that his disabilities affect his ability to perform his current job and that he may become unemployed in the future as a result of his service-connected disabilities. The medical evidence regarding the Veteran's employability includes VA treatment records and VA examination reports. These pieces of medical evidence show that the Veteran would be limited in or precluded from obtaining employment requiring heavy manual activity, but the record does not establish that he would be unable to engage in sedentary or regular duty employment. Significantly, the Veteran has been afforded several VA examinations throughout the appeals period. An October 2010 VA general medical examination report notes that the Veteran reported losing two weeks of work during the prior 12 month period due to light-headedness which he attributed to his service-connected DM. However, the examiner noted that his DM was well-controlled by diet alone and would not affect his employability. The examiner further noted that the Veteran's limitations in walking were due to his nonservice-connected knee and ankle disabilities, not his service-connected cervical spine disability. He did, however, note that the Veteran's cervical spine disability required the Veteran to avoid very heavy lifting and heavy physical activities. There was no mention of any other physical limitations solely due to his service-connected disabilities and the examiner did not find the Veteran to be unemployable. Instead, he noted the Veteran's fulltime employment as a security officer. The Veteran was next examined in December 2011 with regard to his employability. After reviewing the claims file and examining the Veteran, the examiner concluded that the Veteran could work in a sedentary job and/or in his current fulltime position. A February 2012 VA mental disorders examination discussed the impact of the Veteran's service-connected PTSD on his employability. The examiner concluded that the Veteran's ability to understand and follow instructions, retain instructions and sustain concentration to perform simple tasks, sustain concentration to task persistence and pace, and respond appropriately to changes in the work setting was not impaired. The only job-related impairments that the VA examiner noted was mild impairment in the ability to respond appropriately to coworkers, supervisors, or the general public. Although the Veteran complained that he did not feel that he would be able to continue to work due to his level of agitation with others and impatience, he did not report any issues with his work productivity. The Veteran was most recently provided VA examinations to evaluate all of his service-connected disabilities and their effect on his employability in March 2013. The Veteran was first provided a general medical examination to evaluate the effect of his service-connected physical disabilities. The examiner noted the Veteran's service-connected DM, radiculopathies, cervical spine disability, and left foot disability. However, he concluded that none of these disabilities rendered the Veteran unemployable. The examiner noted that the Veteran was unable to run due to his left foot disability and that he could not engage in heavy duty jobs due to his cervical spine disability and associated radiculopathies. Despite these physical restrictions, the examiner concluded that none of the Veteran's service-connected physical disabilities prevented him from non-heavy duty physical employment, sedentary employment, or his current job. The Veteran was then afforded a mental disorders/PTSD examination. The PTSD examiner noted that the Veteran was employed fulltime as a security specialist for a school system. The Veteran complained that his PTSD symptoms resulted in a high number of absences from work. However, he denied any problems performing his duties while on the job or receiving any reprimands or disciplinary action. In light of the Veteran's fulltime employment without any problems performing his duties or disciplinary action and the significantly decreased contact with mental health services since the last VA examination, the examiner concluded that the Veteran's PTSD did not disqualify him from his present occupation. The medical evidence also includes VA treatment records that reiterate the findings of the VA examinations and reference the Veteran's fulltime employment. Notably, a December 2009 treatment record indicates that the Veteran's most limiting disability at that time was his nonservice-connected ankle and that it would only result in 4 to 6 weeks off of work. The claims file also includes lay evidence, including personal statements from the Veteran and coworkers. None of these statements establish that the Veteran was unemployable at any point throughout the appeals period. Significantly, these statements reference the Veteran's fulltime employment throughout the appeals period. While the Board does not doubt that the Veteran's service-connected disabilities have a significant effect on his employability, as evidenced by his 80 and 90 percent combined ratings, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Veteran is, in fact, employed, both currently and at all times throughout the appeal period. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated by the currently assigned 80 and 90 percent combined ratings. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The only evidence in this case in support of the grant of a TDIU is the Veteran's own contentions. While he is competent to discuss the symptoms of his service-connected disabilities and his perception of their effect on his unemployment, his assertions are outweighed by the conclusions of the relevant VA examiners. The examiners based their conclusions that the Veteran remained employable on a review of medical records, the Veteran's reported history, and contemporaneous physical examinations. Most significantly, the Veteran has maintained fulltime substantially gainful employment throughout the appeals period, reflecting not only that the Veteran is employable but that he is also employed. Prior to March 1, 2013, the Veteran met the percentage standard of one disability ratable at 40 percent or more with a combined rating of 70 percent or more. However, in accordance with the reasons set forth above, he has not been found to be unemployable by reason of service-connected disabilities at any time throughout the appeals period. Accordingly, a basis for a grant of TDIU on a schedular basis has not been presented at any point during the appeals period. Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities, since the Veteran is, in fact, employed, and has been employed throughout the entire appeal period. The Board notes the Veteran's contentions that he had to leave a higher-paying job for one with lower pay so that he could remain employed. The Board does not doubt the credibility of the Veteran's contention. The Veteran has been awarded compensation in recognition of the fact that his industrial ability is impaired. There is no showing that the compensation awarded, which has varied from 80 percent to 100 percent during the appeal, is inadequate; there is no appeal before the Board for an extraschedular evaluation for any disability. The appeal before the Board is for TDIU. TDIU, by regulation, compensates a Veteran who is unemployable. The Veteran is employed, as of the recent March 2013 VA examination. By the terms of the regulation, the Veteran does not meet the criteria for an award based on unemployability. 38 C.F.R. § 4.16. The Board does not doubt the credibility of the Veteran's contention that he may become unemployable because of his service-connected disabilities. The decision herein does not preclude the Veteran from seeking an award of TDIU when he is unable to obtain or retain gainful employment. At this time, however, as the Veteran remains employed, the claim for TDIU must be denied. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs