Citation Nr: 1324837 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 07-21 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), prior to February 28, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1995 to April 2000. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in part, denied the Veteran's claim for a TDIU. This issue was remanded for further development in January 2011, and March 2013, and now returns again before the Board. The Board notes that the question of a TDIU grant, from February 28, 2007, is moot, as the Veteran has been granted a schedular total evaluation from that point. Therefore, the issue in appellate status is as noted above. FINDINGS OF FACT 1. Prior to February 28, 2007, the Veteran was service connected for major depressive disorder, at a 70 percent evaluation, degenerative disc disease of the lumbar spine, at a 10 percent evaluation, the residuals of a fracture of the right ankle, at a 10 percent evaluation, a cervical spine injury, at a 10 percent evaluation, Grave's disease at a 10 percent evaluation, a headache syndrome at a 10 percent evaluation, the residuals of a cyst in the left jaw, at a noncompensable evaluation, at the residuals of a cyst in the left upper back area, at a noncompensable evaluation. 2. The Veteran's combined service-connected disability rating was 90 percent, prior to February 28, 2007. 3. The medical and other evidence of record does not indicate the Veteran's service-connected disabilities, prior to February 28, 2007, precluded him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). Stegall Considerations As noted above, the Board previously remanded this claim in January 2011 and March 2013 for further development, specifically for further development regarding the Veteran's prior employment. This development was undertaken and his claim was readjudicated in a May 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that 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). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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 Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in May 2005, prior to the initial adjudication of these claims, as well as letters in June 2006, January 2011, and March 2013, and the prior Remands, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided with multiple examinations during the course of this appeal for his various service connected disabilities, including in 2005 and February 2006. The results of these examinations, combined with the other evidence of record, provide sufficient information to render a decision in this appeal. 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). Analysis The Veteran contends that his service connected disabilities, prior to February 28, 2007, rendered him unemployable. A total disability evaluation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Board is precluded from granting a TDIU under § 4.16(b) in the first instance. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Prior to February 28, 2007, the Veteran was service connected for major depressive disorder, at a 70 percent evaluation, degenerative disc disease of the lumbar spine, at a 10 percent evaluation, the residuals of a fracture of the right ankle, at a 10 percent evaluation, a cervical spine injury, at a 10 percent evaluation, Grave's disease at a 10 percent evaluation, a headache syndrome at a 10 percent evaluation, the residuals of a cyst in the left jaw, at a noncompensable evaluation, at the residuals of a cyst in the left upper back area, at a noncompensable evaluation. As the Veteran's service-connected disabilities combined for an evaluation of 90 percent, prior to February 28, 2007, the threshold schedular requirements for consideration of a grant of TDIU are met for this period. However, even if the Veteran meets that schedular amount, he must be found to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In this regard, while the evidence does show that the Veteran's service connected disabilities impaired his employability, the evidence shows that the Veteran was unemployable during this period due to his nonservice-connected diagnosis of leukemia. The Veteran has submitted several statements that clearly indicate the Veteran was unable to be employed due to his diagnosis of leukemia. A letter dated October 2004 from the Veteran specifically indicates that he was about to take a new job with a defense contractor, when the job offer was withdrawn because of his leukemia diagnosis. The Veteran's claim for unemployability, received in December 2004, specifically indicates that he was dismissed from his last job due to a diagnosis of leukemia. A May 2005 statement from the Veteran's prior employer indicated that the Veteran had been unable to work for them since October 2004, due to an unspecified "medical condition." In a July 2005 statement, the Veteran indicated that he had been terminated from his last position due to his leukemia, and that he was unable to find another position because no one would hire him once he had a diagnosis of leukemia. A July 2005 VA examination regarding the Veteran's right ankle noted that the Veteran had moderate lateral instability of the right ankle. This impacted his work capacity in that is caused him difficulty with mobility and pain. It also caused mild problems with the Veteran's ability to do chores, shop, exercise, and participate in recreation, and also caused severe impediments to the Veteran's ability to participate in sports. A July 2005 examination for the Veteran's service connected headaches indicated that this disability has no significant impact on the Veteran's ability to work. A July 2005 VA examination for the Veteran's back found the Veteran to have degenerative disc and joint disease of the lumbar spine, which caused significant effects on his ability to work, including decreased mobility, problems with lifting and carrying, lack of stamina, and pain. This disability prevents the Veteran from participating in sports, and severely impacts his ability to exercise and do chores. A July 2005 thyroid examination found the Veteran's service connected Grave's disease caused on significant effects on the Veteran's occupation or daily activities. A September 2005 VA examination conducted regarding the Veteran's service connected left jaw cyst noted that this disability currently had no effect on the Veteran's ability to work or function. A February 2006 VA examination for hemic disorders noted that the Veteran's leukemia was not related to his service connected Grave's disease. Treatment records from February 2006 indicate that the Veteran was in school at that time, and had a Global Assessment of Functioning (GAF) of 50. An April 2006 rating decision denied the Veteran service connected for leukemia, finding that the condition was not diagnosed until 2004, and was not related to service or secondary to any service connected disability. A later April 2006 outpatient treatment report indicated that the Veteran was not going to some of his classes. An October 2006 VA outpatient treatment report indicated that the Veteran was attending a University working towards a degree in history, and already had an associate's degree. At that time, the Veteran indicated that he had been working for Home Depot in their customer service department. Throughout the remainder of this appeal, the Veteran's GAF was consistently found to be 50, which would be indicative of serious, but not total impairment in social, occupational, or school functioning. Reviewing this evidence, while it does indicate that the Veteran's service connected disabilities have some impact on his employability, the Board finds that this evidence tends to show that the bulk of the Veteran's issues due to employability are related to the Veteran's nonservice connected leukemia. The evidence clearly shows that the Veteran himself has stated that was fired and unable to find employment due to his leukemia, and the majority of the Veteran's treatment records prior to February 28, 2007, show treatment for leukemia and depression secondary to that diagnosis. Further, as noted above, the records show that the Veteran was able to maintain his school attendance generally during this time, and appears to have worked at some point during this period at Home Depot. While the Veteran's service connected disabilities did have a significant impact on his employability during this period, the Board finds that level of impact is reflected in the high percentage of service connection the veteran received during this period. While the veteran was unable to find employment during this period due to his nonservice connected leukemia, the Board notes he was able to maintain school attendance generally, and apparently worked some length of time at Home Depot as well. While the veteran was unable to find employment during this period because of his leukemia, that is not relevant to the question of whether was unemployable due to his service connected disabilities. Considering this, and all evidence of record, the Board therefore finds that the preponderance of the evidence of record is against a finding that the Veteran's service connected disabilities alone rendered him unemployable during this period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to a TDIU, prior to February 28, 2007, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs