Citation Nr: 1324035 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-29 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to October 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2011, the Board remanded the case for additional development, to include affording the Veteran a VA examination and obtaining records. That development was completed, and the case has since been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran does not meet the schedular requirements for a TDIU. 2. The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met for any period. 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, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 With respect to the appellant's claims 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. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In February 2007 and July 2008, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Both letters provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes the VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The record indicates the VA has unsuccessfully attempted to obtain, to the extent possible, all outstanding medical records identified by the Veteran. The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in June 2011 pursuant to the Board's March 2011 Remand. This opinion involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale. Therefore, the Board finds that the examinations are adequate for rating purposes. 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). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. As such, the Board finds there has been substantial compliance with its March 2011 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and on Virtual VA. Although 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 her 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 appellant). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. 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 a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). In this case, the Veteran contends that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. The Veteran has five service-connected disabilities: degenerative disc and joint disease of the lumbar spine, with intervertebral disc syndrome (also claimed as damage to the spine), rated as 40 percent disabling; right shoulder strain, rated as 20 percent disabling; obturator nerve involvement of the right thigh with radiculopathy of the right lower extremity associated with degenerative disc and joint disease of the lumbar spine, with intervertebral disc syndrome (also claimed as damage to the spine), rated as 10 percent disabling; radiculopathy, left lower extremity (claimed as a left leg condition), associated with degenerative disc and joint disease of the lumbar spine, with intervertebral disc syndrome (also claimed as damage to the spine), rated as 10 percent disabling; and left ear hearing loss, rated as 0 percent disabling. The Veteran does not meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16(a) for consideration for TDIU because, while he has five service-connected disabilities, where at least one disability is rated at 40 percent or more, the combined disability rating is not at least 70 percent. A TDIU may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Court has clarified that, where a claimant does not meet the scheduler requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Compensation and Pension Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Veteran is currently employed as a substitute teacher. His prior occupation was a jet mechanic. In his January 2006 claim for an increased rating for his service connected low back condition, the Veteran stated he can no longer stand and "the only type of work [he] can get is substituting as a teacher. This is very limited work and makes it easy on [him] and keeps [him] off of [his] feet." In November 2004, the Veteran stated that his disabilities render him unable to obtain permanent employment because "any job that requires lifting over 10 to 20 pounds for a prolonged or daily requirement" has been prohibited by his medical doctor. In addition, he stated because his doctor prohibited prolonged standing, walking, crouching, crawling, and lifting weights it makes it difficult, if not impossible, to secure permanent employment. According to the Request for Employment Information in Connection with Claim for Disability Benefits form, completed in March 2007, the Veteran was employed by MG Mini Gears in Virginia Beach, VA, starting in September 2006 as a machine operator. He was able to work 8 hours or more per day and 40 hours or more per week. The Veteran indicated he did not lose any time during the 12 months preceding the last date of employment due to a disability. In another Request for Employment Information in Connection with Claim for Disability Benefits form, also completed in March 2007, the Veteran was employed at the Virginia Beach City Public Schools as a substitute or assistant teacher since August 2004. It was indicated that substituting was an "on call" position without regular contract hours and the rate of pay was variable depending on the position filled. In a August 2008, the Veteran stated that as a result of the pain in his neck and upper extremities stemming from the narrowing in his vertebrae, he was placed on light duty by his doctor because as of March 2008 he has been unable to perform his duties at MG Mini Gears. The Veteran stated this has put his pay and future promotions in jeopardy. The Veteran was afforded a VA examination for the right shoulder tendonitis with impingement in July 2009, where a diagnosis of right shoulder strain was made. Upon physical examination the examiner remarked that the "effect of the condition on the [Veteran's] daily activity is limited ability to lift, continual shoulder pain, inability to be employed." According to the Employment Services notes by his Employment Coordinator at the VA's Vocational Rehabilitation and Employment Services, the Veteran obtained employment with the U.S. Navy as a Marine Placement Specialist in August 2009. Notes dated November 2009 indicate the the Veteran was still employed. In an email to the RO in October 2009, the Veteran stated he was laid off from MG Mini Gears because he is unable to perform his duties, parly due to his shoulders. The Veteran further stated that he "can no longer perform manual labor as a career, and with the job VA Rehabilitation help[ed] [him] get is somewhat out of [his] league." The Veteran stated he believed he will be unable to stay employed for long due to his disability and finding a new one will be difficult. In December 2009, the Veteran underwent a VA examination for degenerative disc and joint disease of the lumbar spine with intervertebral disc syndrome. Upon physical examination, the examiner noted that the "effect of the condition on the [Veteran's] usual occupation is pain with prolonged standing, walking, lifting, and bending." According to a Functional Ability Request Form, completed by Dr. G. G., at the Tricare Prime Clinic in March 2010, it was noted that the Veteran was not currently able to work. However, no comment was made whether it was temporary or permanent. In May 2010, the Veteran underwent a kinesiotherapy consult in May 2010, where he demonstrated the ability to perform the following in the rare category: climb stairs, stoop, and bend. In the occasional category, the Veteran was balance. However, he did not demonstrate the crawl or kneel. He did, however, demonstrate the ability to lift 10 to 25 pounds. The VA kinesiotherapist stated the Veteran condition was chronic but stable. He is able to work but will most likely require a sedentary job. In June 2011, the Veteran was afforded another VA examination pursuant to the Board's March 2011 remand for additional development. Upon review of the evidence of record, a physical examination, and the Veteran's lay statements of history and current symptomatology, the examiner opined that the Veteran was less likely as not unemployable as a result of his disabilities of the back and shoulders. The examiner stated that the Veteran is currently employed as substitute teacher working 7 to 35 hours a week. Prior to this, the Veteran was employed in security and computer customer service. The examiner noted that the Veteran was evaluated in 2010 when it was established that he was able to perform sedentary work. As such, the examiner concluded that while it is unlikely the Veteran is able to work as a mechanic (which according to the Veteran pays $19 an hour), he is currently employed as a substitute teacher (which pays $11 an hour) and there is no evidence to support unemployability. The Board finds that after a careful review of the Veteran's claims file, the weight of lay and medical evidence shows that the Veteran's service-connected disabilities have not rendered him unable to obtain or maintain substantially gainful employment. As noted above, it was determined that the Veteran did not meet the schedular requirement. In addition, although the Veteran is not currently employed in his preferred occupation as a mechanic, he is nevertheless, currently employed as a substitute teacher. Furthermore, although there are opinions that the Veteran is unemployable, the record indicates the Veteran has been able to stay employed. Even if it were shown that the Veteran was currently not employed, the Board concludes that the preponderance of the evidence is against the claim that he is precluded from engaging in substantial gainful employment by reason of his service-connected disability. Namely, the May 2010 VA kinesiotherapist determined that the Veteran was able to work in a sedentary job. Here, the Veteran himself stated that his job as a substitute teacher was limited work and he was able to stay off his feet. Although the Board has considered the Veteran's assertions in this appeal, there is no medical evidence indicating that his service-connected disabilities renders him unable to obtain or retain substantially gainful employment; therefore, the Board must conclude that the criteria for invoking the procedures of 38 C.F.R. 4.16 (b), for assignment of a TDIU, on an extra-schedular basis, are not met. For these reasons, the Board finds that the weight of the credible evidence demonstrates that the criteria for TDIU have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs