Citation Nr: 1323059	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  08-25 945	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Coyle, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the docket.

The Veteran served on active duty from September 1954 to September 1957, and from December 1957 to June 1976.   

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2013, the Board remanded this issue to the agency of original jurisdiction (AOJ) for further evidentiary development.  


FINDING OF FACT

The Veteran is not precluded from substantial and gainful employment solely due to his service-connected disabilities. 


CONCLUSION OF LAW

The criteria for a TDIU are not met.  38 U.S.C.A. §  1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.   

A March 2007 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The claim was subsequently readjudicated, most recently in a June 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).   The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). 

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in August 2006, August 2009, August 2010, June 2012, and May 2013.  

The May 2013 examination was conducted by a physician's assistant, not a medical doctor as directed by the Board in its April 2013 remand.   The examination considered all of the Veteran's service-connected disabilities except hearing loss, and provided an adequate opinion as to whether or not these disabilities, taken together, preclude substantially gainful employment.  The examiner provided a separate opinion for the Veteran's hearing loss, despite the Board's April 2013 remand which directed that the examiner must state whether the combined effect of all of the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment.  

Although the examination was conducted by a physician's assistant, the examination report reflects a thorough review of the evidence of record.  The examiner applied the correct standard of review and provided a cogent rationale for his conclusions.  Moreover, even though the issue of hearing loss was considered separately from the other disabilities, when considered together the examination reports are sufficient to determine the combined effect of all of the Veteran's service-connected disabilities on his ability to engage in substantially gainful employment.  Thus, there was substantial compliance with the April 2013 remand orders.  Stegall v. West, 11 Vet. App. 268 (1998).   

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).   

Law and Regulations

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more 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.  38 C.F.R. § 4.16(a).  

The Veteran is service-connected for atherosclerotic heart disease (30%); diabetes mellitus (20%), degenerative disc disease of the lumbar spine (20%); degenerative disc disease of the cervical spine (10%); hearing loss (10%); peripheral neuropathy, right lower extremity (10%); peripheral neuropathy, left lower extremity (10%); and erectile dysfunction (0%).   

Although the Veteran's combined total disability rating is 70 percent, he does not meet the schedular criteria because he does not have at least one disability ratable at 40 percent or more.  However, a TDIU can still be awarded if it is established by the evidence of record that service-connected disabilities have rendered the Veteran unable to secure and follow substantially gainful employment.  If this is established, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration.  See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b).

Neither the Veteran's age nor his nonservice connected disabilities can be taken into account in evaluating his individual unemployability status.  38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995).  

Analysis 

In February 1993, the Veteran underwent a coronary artery bypass graft.  In March 1994, his physician, Dr. S.K.B., stated that he was capable of working a maximum of 8 hours per day, and that he should "avoid stressful situations."  The Veteran elected to retire, and file for benefits from the Social Security Administration (SSA). SSA benefits were awarded in an April 1997 decision, which found that the Veteran's coronary artery disease, low back syndrome, and diabetes mellitus resulted in a lack of residual functional capacity to return to his former employment.  Included with the evidence of record were two statements from Dr. S.K.B., dated September 1994 and June 1995, stating that the Veteran was "totally disabled" as a result of coronary artery disease and diabetes.

In May 1999, the Veteran stated to his private physician that he enjoyed traveling and playing golf.  Subsequent clinical notes document a remarkable improvement in the Veteran's general health.  In October 2003, his physician found him to be in "remarkably good health," and in October 2004, the Veteran was "doing very well" and apparently stated that he was considering a return to active duty.  

The Veteran underwent a VA examination in August 2006.  The examiner found that the Veteran's diabetes was productive of loss of strength, erectile dysfunction, and neuropathy in the lower extremities.  It had also resulted in the development of coronary artery disease, which caused shortness of breath, dizziness and fatigability.  He had undergone two coronary artery bypass grafts.  

Degenerative disc disease of the lumbar spine and cervical spine caused stiffness, chronic back pain, and weakness.  These symptoms were mitigated somewhat with rest and medication.

Hearing loss was not evaluated during this examination and the examiner did not comment on the effect of the Veteran's service-connected disabilities on his employability.

In September 2007, the Veteran reported that he was about to go on a long vacation, but that he had "mild exertional fatigue" as a result of his coronary artery disease.  

A VA TDIU examination took place in August 2009.  The audiological examiner found that the Veteran's bilateral hearing loss did impact his "overall communication performance in a variety of environments"; however, this did not preclude any ability to "maintain gainful employment."  The remainder of the Veteran's service-connected disabilities were evaluated together.  The examiner found that the Veteran's diabetes, erectile dysfunction, and peripheral neuropathy had no effect on his employability.  His heart condition precluded "strenuous physical activities such as prolonged walking, standing, lifting, bending, and climbing stairs."  His degenerative disc disease of the lumbar spine and cervical spine also precluded strenuous physical activities.  The examiner did not state whether the combined effect of all of the Veteran's service-connected disabilities precluded the Veteran from engaging in substantially gainful employment. 

The Veteran was examined again in August 2010.  The audiological examiner stated that the Veteran "would be disqualified from employment which mandated hearing sensitivity within normal limits" and that his hearing loss "may cause difficulty understanding conversational level speech, particularly in difficult listening environments."  

In a separate examination, a VA examiner found that neither diabetes nor peripheral neuropathy caused "any functional impairment which would [affect] sedentary or physical forms of employment."  His heart disease did "not cause a functional impairment which would limit sedentary forms of employment"; however, it would preclude physical forms of employment as a result of shortness of breath with moderate exertion.  His degenerative disc disease of the lumbar spine and cervical spine also precluded physical, but not sedentary, employment.  

Although the examiner concluded that the Veteran was capable of engaging in sedentary employment, he did not state whether the Veteran was capable of "substantially gainful employment," nor did he consider the combined effect of all service-connected disabilities on the Veteran's employability. 

An August 2012 examination report concluded that the Veteran's coronary artery disease and degenerative disc disease caused "functional impairment for physical employment."  There was no "functional impairment for sedentary employment.  Again, the examiner did not state whether the Veteran was capable of "substantially gainful employment," nor did he consider the combined effect of all service-connected disabilities on the Veteran's employability.

The agency of original jurisdiction requested that the examiner provide an addendum with a determination as to whether the combined effect of all of the Veteran's service connected disabilities precluded him from engaging in substantially gainful employment.  The addendum was provided in February 2013, and essentially restated the examiner's August 2012 findings.  

Pursuant to the Board's April 2013 remand, an opinion as to the Veteran's employability was received in May 2013.  The examiner reviewed the claims folder, including the Veteran's military history, post-service occupational history, and current symptoms.  The examiner found that the Veteran's erectile dysfunction did not result in any functional disability.  The combined effect of his degenerative disc disease of the lumbar spine and cervical spine, coronary artery disease, diabetes, and peripheral neuropathy of the lower extremities would preclude him from engaging in substantially gainful physical employment, because such employment "would cause increased symptoms with physical activities."  The combined effect of these disabilities would not, however, preclude the Veteran from engaging in substantially gainful sedentary employment, since sedentary employment "will cause less aggravation of these disabilities."  

The Veteran also underwent an audiological evaluation in May 2013.  After reviewing the evidence of record and conducting a physical evaluation of the Veteran, the audiologist concluded that the Veteran's hearing loss would not prevent substantially gainful employment, unless normal hearing acuity was a condition of employment.  

The evidence reflects that the Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment.  The VA examination reports show that he has limitations in regards to his ability to engage in physical employment, but the combined effect of all service-connected disabilities does not preclude substantially gainful sedentary employment, since such employment would not aggravate his symptoms to the point where he would be unable to engage in the responsibilities of his employment.  

Although the SSA determined that the Veteran's diabetes, degenerative disc disease of the lumbar spine, and coronary artery disease precluded him from engaging in light employment as of April 1997, subsequent clinical notes reflect that the Veteran's physical symptoms drastically improved after that.  In fact, in October 2003 the Veteran's physician pronounced him to be in "remarkably good health," and in October 2004 the Veteran mused about the possibility of returning to military service.  He was also able to travel and play golf, both of which require an ability to engage in physical tasks.  In September 2007, the Veteran stated that he was taking a "long vacation," despite having experienced some "mild exertional fatigue."  Thus, it appears that the Veteran is capable of mild to moderate exertion.  Moreover, no VA examination has found that the Veteran is precluded from working solely as a result of his service-connected disabilities.  

The Veteran believes that his service-connected disabilities preclude all forms of gainful employment.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), determining whether substantially gainful employment is precluded falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  

The preponderance of the evidence is against a total disability rating based on individual employability; there is no doubt to be resolved; entitlement to a TDIU is not warranted; and referral for extraschedular consideration is not warranted.  


ORDER

Entitlement to a TDIU is denied. 




____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs