Citation Nr: 1325136 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-19 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from October 1954 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2010, the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In March 2013, the Board remanded the issue of a TDIU for a referral for extraschedular consideration. FINDING OF FACT The Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a total disability rating based on individual unemployability due to service-connected disability are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.15, 4.16 (2012). Duties 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. Letters in July 2008, December 2008, and June 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (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 and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. In the June 2012 letter, the RO requested that the Veteran identify all non-VA providers and complete the provided VA Form 21-4142 to allow the RO to attempt to obtain the private records of treatment. Although a December 2007 VA treatment record notes the Veteran's report of private treatment, the Veteran did not provide an authorization for release of any private medical records, and as such, VA is unable to request them. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran indicated in June 2008 that he is not in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2008, January 2011, April 2012, and October 2012, and an opinion from the Director of C&P service was obtained in June 2013; the Veteran has not argued, and the record does not reflect, that these examinations/opinions were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The opinions are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim 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, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the Veteran to prevail on his TDIU claim, it is necessary that the record reflect some factor which takes his case outside the norm of other such Veterans. 38 C.F.R. §§ 4.1, 4.15 (2012). The Veteran asserts that he retired from his deputy sheriff position, which included firearms instruction, a position in which he worked from March 1978 to June 1996, due to his service-connected respiratory and left knee disabilities. He further contends that he is unemployable in any other job because of the side-effects from the medications he has to take for his service-connected disabilities, which he asserts prevent him from functioning properly. The Veteran's service-connected emphysema is rated as 30 percent disabling; the left knee disability is rated as 10 percent disabling; tinnitus is rated as 10 percent disabling; and hearing loss is rated as noncompensably disabling prior to April 18, 2012, and 30 percent thereafter. The combined disability rating, prior to April 18, 2012, is 40 percent, and 60 percent thereafter. He does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Although the Veteran does not meet the percentage requirements for a TDIU, in exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating may be made. 38 C.F.R. § 3.321(b)(1). The claim was referred to VA's Director of Compensation and Pension (C&P) Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) in March 2013. In June 2013, the Director of C&P issued a decision concluding that entitlement to a TDIU on an extraschedular basis is not established under 38 C.F.R. § 3.321(b)(1). It was noted that, although the Veteran would have problems related to employment which is labor intensive, his service-connected disabilities do not preclude maintaining sedentary employment. No hospitalization for any extended periods of time due to service-connected disabilities was noted. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88 (1996). The record reflects the Veteran retired in 1996 and, although in his May 2008 claim he reported having left his employment due to disability, in July 2008, his employer noted the reason for termination was "Retired;" there is no indication that he retired on disability. Regardless, the Board is not bound by disability determinations of other agencies. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a disability evaluation is itself recognition of industrial impairment. See 38 C.F.R. § 4.1 (2012). The August 2008 VA joints examination report reflects the Veteran's complaints of shortness of breath only with moderate exercise, such as mowing the yard or excessive walking. Despite the limitations noted with respect to running, walking, and standing, the examiner reported that the Veteran was independent with activities of daily living, and no significant change was noted in the February Pulmonary Function Test (PFT) results when compared to the results obtained in 2008. Although the January 2011 VA examiner opined that the Veteran's service-connected chronic lung disease and left knee disability would preclude his ability to obtain employment "in his normal occupational environment which is firearms instructor ..." because of his inability to stand for a long time and limited walking, such does not establish that the Veteran's service-connected disabilities preclude maintain substantially gainful employment. The October 2012 examiner specifically concluded that the left knee and respiratory disabilities did not render the Veteran unemployable in sedentary positions, such as an office job. The April 2012 VA audio examiner determined that general employability was possible with proper hearing aids and/or assistive listening devices, citing the, Americans with Disabilities Act. The examiner concluded that hearing loss alone would not preclude the Veteran from maintaining employment. With respect to the effects of medication on the Veteran's employability, the October 2008 VA joints examination report notes the use of Vicodin only 2 to 3 times per month and little or no side effects were specifically reported. It was noted that the Veteran stopped taking non-steroidal anti-inflammatory medication (NSAID) "for fear" of side effects, not because he had had experienced side effects. The only medication in association with his respiratory disability noted on VA examination in August 2008 was an Albuteral inhaler, as necessary, and intermittent wheezing 2 to 3 times throughout the week was noted to resolve spontaneously with minimal/no help from an Albuteral inhaler in the April 2012 VA general medical examination report. Nightly use of a continuous airway pressure (CPAP) machine was noted in association with sleep apnea, noted to be unrelated to his service-connected respiratory disability. The April 2012 VA general medical examiner noted that, although the Veteran complained of being slightly more short of breath since the January 2011 VA examination, he had had no episodes of exacerbations of chronic obstructive pulmonary disease (COPD) requiring antibiotics since that examination. Dyspnea with moderate activities requiring rest was reported, and a cough was noted to be without bacterial infections. To the extent that the Veteran has been prescribed medication by non VA providers, as indicated in a December 2007 VA treatment record, which notes the addition of "urodiol," the Veteran has not provided the private records of treatment or the release requested to permit VA to obtain the records. The duty to assist is not a one-way street. The October 2012 VA examination report reflects the Veteran's respiratory condition does not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, or antibiotics. Both the April 2012 and October 2012 examination reports note no requirement for oxygen. Consistent with the June 2013 decision of the Director of C&P Service are the January 2011 and October 2012 VA examination reports, both of which note no history of hospitalization. The Veteran is competent to report his symptoms and, although he is retired, such does not establish that he was unable to maintain gainful employment due to service-connected disabilities. In reaching this determination, the Board has accorded more probative value to the opinion of the Director of C&P Service, which is supported by the VA examination reports. The Board finds that an extraschedular evaluation is not warranted because the evidence fails to show marked interference with employment in excess of that contemplated by the rating schedule and/or frequent periods of hospitalization and/or any other evidence that would render impractical the application of the regular schedular standards. The Board recognizes that its March 2013 remand, inherently, if not explicitly, included the finding that the rating schedule did not adequately account for the Veteran's level of disability, and that there was evidence of interference with employment, as such was the basis for referring the matter to the Director of C&P Service for extraschedular consideration. Significantly, however, this finding was only made with respect to the question of whether the threshold requirements identified in Thun v. Peake, 22 Vet. App. 111 (2008), for referral for extraschedular consideration had been met. The Board is not bound by any finding made in the March 2013 remand. To the contrary, an initial Board finding with respect to meeting the threshold requirements of Thun, to warrant referral for consideration of an extraschedular evaluation do not result in a final decision as to whether entitlement to an extraschedular evaluation is warranted. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). With respect to entitlement to a TDIU on an extraschedular basis, the Board has accorded more probative value to the VA examination reports and opinions, coupled with the opinion provided by the Director of C&P Service to the effect that the Veteran is not unemployable due to service-connected disability, to include on an extraschedular basis. The opinions are adequate; the Veteran's history was considered; the claim was reviewed; and cogent rationales for the opinions were provided. The preponderance of the evidence is against the assignment of a TDIU, to include on an extraschedular basis; there is no doubt to be resolved. A TDIU is not warranted. ORDER A total disability rating for compensation on the basis of individual unemployability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs