Citation Nr: 1325351 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 05-32 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St, Petersburg, Florida, which continued and confirmed a prior rating of 10 percent for chondromalacia of the left knee. In this regard, the United States Court of Appeals for Veterans Claims (Court) holds that a TDIU claim is part and parcel of an initial or increased rating claim when raised by the record. Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously determined that the claim for TDIU was reasonably raised by the record with respect to the issue of entitlement to an increased rating for left knee chondromalacia, and therefore, the claim for TDIU arises from that increased rating claim. The Veteran testified at a personal hearing before a Decision Review Officer at the RO in March 2006. A transcript of the hearing is of record. While the Veteran initially requested a Board hearing in his September 2007 substantive appeal, he withdrew this request in July 2008. This issue was remanded in September 2012 for further evidentiary and procedural development. As discussed below, the Board finds that there was substantial compliance with its remand directives; thus, it may proceed with a decision at this time. FINDINGS OF FACT 1. The Veteran does not have one disability ratable at 60 percent or more, nor does he have at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 2. The Veteran's service-connected disability ratings fail to meet the minimum percentage requirements on a schedular basis for a total disability rating based on individual unemployability due to service-connected disabilities, and the preponderance of the evidence demonstrates he is not unemployable only by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.341(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper notice from 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). After careful review of the claims folder, the Board finds that a letter dated in December 2012 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letter informed the Veteran of what evidence was necessary to substantiate his claim for TDIU, to include on an extra-schedular basis. The letter notified the Veteran of his and VA's respective duties for obtaining evidence. The duty to notify was satisfied subsequent to the initial AOJ decision. The Board finds that this error was not prejudicial as the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, was provided with sufficient time to respond, and the AOJ readjudicated the case by way of the May 2013 supplemental statement of the case after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Thus, the Board finds that the December 2012 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, VA examination reports dated in November 2004, May 2006, January 2008, March 2010 and January 2013, private treatment records, lay statements from the Veteran, and a transcript of the March 2006 DRO hearing. The January 2013 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history and an evaluation of the Veteran with respect to his service-connected disabilities. The examiners provided an opinion on whether the Veteran's service-connected disabilities alone rendered him unemployable and provided a clear explanation for their opinion. Accordingly, the Board concludes that the examinations are adequate for adjudication purposes. In addition, as noted in the Introduction, this claim was previously remanded in September 2012 to schedule a VA examination to determine the combined impact of the Veteran's service-connected disabilities on his ability to obtain and maintain gainful employment. The claims file contains VA examination reports dated in January 2013 and medical opinions that answered the questions raised by the Board and were supported by an adequate explanation. Accordingly, the Board finds that there has been substantial compliance with the September 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issue currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis The Veteran filed a claim for an increased disability rating for service-connected left knee chondromalacia with osteoarthritis. As part of his increased rating claim, the Veteran alleged in a March 2008 statement that he had to quit his job due to "all of his aches, pains and other ailments, compounded by a feeling of not being able to think properly or remember things, caused by his medicines." He is currently unemployed. 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). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (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 he 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. 38 C.F.R. § 4.16(a) (2012). For the 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. It is provided further that the existence or degree of non-service connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. In the present case, service connection is established for lumbosacral strain with mild osteophyte formation with moderate limitation of motion, rated as 20 percent disabling; cervical strain with narrowing of disc space C5-C6 with mild osteophyte formation, rated as 10 percent disabling; heel spur left os calcis, rated as 10 percent disabling; residuals, laxity and instability of the left knee associated with chondromalacia of the left knee, rated as 10 percent disabling; chondromalacia of the left knee rated as 10 percent disabling and tinnitus, rated as 10 percent disabling. The Veteran's lumbosacral strain, cervical strain, heel spur, left knee instability, and left knee chondromalacia are considered disabilities affecting a single body system, as they all affect the orthopedic system. See 38 C.F.R. § 4.16(a). Combined, these disabilities are rated as one 50 percent disability. Combined with the tinnitus, the total disability rating is 60 percent. The Veteran does not meet the schedular criteria for an award of TDIU pursuant to the provisions of 38 C.F.R. § 4.16(a). However, under subpart (b), a veteran can still be awarded TDIU if it is established by the evidence of record that service-connected disabilities have rendered him 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 Services for extraschedular consideration. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b) (2012). The overall evidence of record demonstrates that the Veteran's service-connected disabilities and associated medications do not prevent him from following a substantially gainful occupation. In this regard, a June 2006 VA examination reveals that the Veteran was currently employed as an office worker and he reported that he lost one day of work due to his left knee condition. He explained that his left knee buckled, resulting in a fall accident and a laceration to his right ear that kept him out of work. Household chores that require standing, walking long distances, squatting, or kneeling increase the Veteran's left knee pain. The Veteran also reported that that he had difficulty with stiffness when sitting for protracted periods of time. A January 2008 VA examination report shows that the Veteran had to stop work in September 2006 due to pain, limitation, and previous pain medication. The Veteran denied any problems with his current pain medication. At that time he did not use any assistive devices. He was able to stand for 10 to 15 minutes at a time without adjusting his position, and he was able to walk up to a mile at a time without difficulty. The Board observes that during a March 2010 VA examination, the Veteran reported that his usual occupation was as an assistant county administrator, and that he retired in 2005 due to eligibility of age or duration of work. The report did not document that the Veteran retired due to any of his service-connected disabilities. The Veteran was provided with a VA examination in January 2013 to evaluate his service-connected disabilities and to provide a medical opinion on whether the Veteran's service-connected disabilities prevent him from securing and maintaining a substantially gainful occupation. After a review of the claims file and evaluating the Veteran's service-connected disabilities, the examiner determined that the Veteran's service-connected disabilities should not preclude employment or occupational duties with respect to sedentary activities. She noted that prolonged standing or walking should be limited during work duties to prevent further aggravation of the left foot condition as well as the other service-connected disabilities. The Veteran's upper extremity strength and manual dexterity were normal. Neuromuscular and sensory function were normal on examination. With respect to the narcotic pain medication prescribed to treat the Veteran's service-connected disabilities, the examiner noted that the Veteran reported that it makes him groggy; therefore, she determined that operating dangerous equipment and responsibility for critical decisions should be precluded. However, there was no other objective evidence that would preclude the Veteran from participating in sedentary employment. The VA audiological report dated in January 2013 also reveals that the Veteran reported that his tinnitus caused difficulty concentrating at work, but that he stopped working due to memory problems caused by medication. The examiner explained that tinnitus did not cause inability to obtain or maintain employment. The crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. The Board acknowledges that the Veteran's service-connected disabilities and memory or concentration problems as a result of pain medication to treat symptoms of his service-connected disabilities would make it difficult for him to obtain and retain certain types of employment, particularly those that require manual or physical labor or a position that requires critical decision-making; however, his service-connected disabilities are not so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment. Further, the evidence of record does not reflect that these disorders would render him individually unable to follow a substantially gainful occupation. The Board recognizes that the Veteran's service-connected disabilities would most likely preclude the Veteran from a senior management position. Nevertheless, his service-connected disabilities are not so severely disabling as to have rendered him unable to secure or follow substantially gainful employment, nor does the evidence of record reflect that these disorders preclude him from securing and following some form of substantially gainful employment consistent with his education and work experience. In this regard, there is no evidence of record indicating that the Veteran would be unable to work in a sedentary position or an office setting. In fact, the January 2013 VA examiner provided the opinion that the Veteran could obtain and sustain gainful employment in a sedentary job. Furthermore, the evidence of record indicates that the Veteran would be able to perform sedentary work based on his education and employment history, which includes sedentary duties. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's service-connected disabilities alone would not prevent him from completing a primarily sedentary occupation, which he should be able to obtain and maintain based on his education and prior work experience. Therefore, submission to the Director, Compensation and Pension Service for extraschedular consideration is not warranted at this time. As a preponderance of the evidence is against the claim of entitlement to a TDIU; there is no doubt to be resolved and this appeal must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a TDIU is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs