Citation Nr: 1325491 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 03-04 327 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU), including on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to May 1970. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an RO rating decision dated in February 2002. The Board previously remanded the case to the RO in June 2006, July 2009, February 2012, and February 2013 for further development and adjudication. As will be discussed, all directed development has been completed, and the claim is ready for adjudication. The Virtual VA paperless claims processing system includes records of VA treatment not currently associated with the paper claims file, which have been reviewed by the RO prior to the most recent adjudication and the Board prior to this decision. FINDINGS OF FACT 1. The Veteran has been granted service connection for right ankle fracture residuals (rated as 20 percent disabling) and tinea cruris (rated at a noncompensable level); his combined evaluation of 20 percent does not meet the schedular requirements for a TDIU rating. 2. The service-connected disabilities of the right ankle and skin, alone, are not shown to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating, to include on an extraschedular basis, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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). 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). The RO provided a VCAA-compliant notice letter to the Veteran in February 2013. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claim, to include on an extraschedular basis, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The claim was readjudicated in the May 2013 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was also provided in February 2013. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available and identified private and VA records were obtained, along with the Veteran's records from the Social Security Administration. The Veteran has not indicated that he had any other additional information or evidence to submit in support of his claim. In addition, the Veteran underwent examination in July 2001, August 2007, September 2008, October 2008, October 2009, June 2010, August 2012, and September 2012 to determine the nature and severity of his service-connected disabilities. These reports discuss the impact of his service-connected disabilities on his occupational functioning and are, therefore, adequate to serve as the basis for the decision in this appeal. In June 2006, July 2009, February 2012, and February 2013, the Board remanded the claim for additional development. This included providing the Veteran with an examination and opinion to determine whether he was unemployable due to his service-connected disabilities, provide him with proper notification, allow him the opportunity to submit evidence or inform VA of any additional private records, and submit the Veteran's claim for extraschedular consideration. The examination reports, taken together, provide an opinion as to employability that takes into account the Veteran's service-connected disabilities and their role on employability. He has been given adequate examinations to ascertain the nature of the severity of his disabilities. The examiners also provided conclusions based upon a rationale supported by the record. Therefore, an adequate opinion has been provided. In February 2012, the RO provided the Veteran with proper notification and gave him the opportunity to submit information regarding any additional relevant records. The Veteran did not do so. In addition, an opinion regarding extraschedular consideration of a TDIU rating was obtained in May 2013. Neither the Veteran nor his representative has presented any additional information regarding this claim. Hence, the record indicates that the Board's remand instructions have been reasonably accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria and Analysis Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 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. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The Veteran is service connected for right ankle fracture residuals, rated at 20 percent, and tinea cruris, rated as noncompensable. To the extent that his combined evaluation is 20 percent, he does not meet the schedular requirements for assignment of a TDIU rating. 38 C.F.R. § 4.16(a). However, as noted, a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (pursuant to 38 C.F.R. § 4.16(b)). Hence, consideration of whether the Veteran, in fact, is unemployable is still necessary in this case. The Social Security records dated in 1991 and 1993 show that the Veteran first reported that his right ankle, right knee, left foot, and left knee disabilities began to bother him in May 1969. He stopped working due to the disabilities in August 1991. He subsequently reported having car accidents in May 1991 and May 1993, which were the onset of his disabilities. They caused him to stop working in May 1993. An April 1996 VA outpatient record shows that the Veteran was three times divorced with two years of college education. He was currently homeless and unemployed. He most recently worked as a car salesman. A September 1997 private hospitalization record indicates that the Veteran had completed two years of college, had a valid driver's license, and had an automobile available for his use. His longest full-time job was nine years. His last occupation was car detailing. In the past three years, his usual employment had been part-time with regular hours. In the past 30 days, he was paid for working on 20 days. In a May 1999 rating decision, the RO determined that he Veteran was awarded nonservice-connected pension benefits. The nonservice-connected disabilities that were noted were organic personality disorder, immature personality characterized by aggressiveness, and posttraumatic stress disorder. A June 2000 Social Security Administration decision shows that the Veteran was found to be disabled from February 1997 due to disorders of the back and a personality disorder. A July 2001 VA treatment record shows that the Veteran reported having been on the streets for thirty years. In a March 2007 VA record, the Veteran reported doing lawn work when it was available. In August 2007, the Veteran underwent VA examination. He reported having trouble walking to his mailbox and being unable to run. He could no longer use a push mower. He had not been able to work since 1999. At that time, he worked on his feet, which made the pain worse. Since then, he had not been able to find employment, as everyone notices his limp. A January 2008 Arkansas tax document indicates that the Veteran completed a certificate to be considered disabled in order to receive a deduction. In May 2008, August 2012, and March 2013 written statements, the Veteran's sister, who is a psychiatric nurse, indicated that the Veteran is 100 percent mentally and physically disabled. In an October 2008 examination report, a VA physician indicated that the Veteran worked in the house wares department of a store after discharge from service. Thereafter, he drove a forklift or a tow truck until 1999, when he was given Social Security disability and retired from work. The Veteran stated that, when he drove, his right ankle quickly became tired. He indicated that, although the Veteran was able to work, it was less likely than not that he could work as a truck driver due to the fatigability of his right ankle. He would be able to do sedentary work from the standpoint of his leg and ankle. In an October 2009 VA examination report, a VA physician indicated that the Veteran's inability to work did not appear to be related to the previous ankle injury except that, when he was driving the truck, he would get fatigability of the right leg and ankle, which made it difficult for him to use the brake and accelerator. The Veteran did not appear to be disabled from substantially gainful employment of a sedentary nature as a result of his service-connected disabilities. However, the examiner noted that the Veteran was not specifically trained for any sedentary job. It was as likely as not that he would have difficulty performing a job which required long time use of the right foot and ankle as in driving a truck or other equipment that required partial foot operation. His skin condition would not be a factor in gainful employment of either a sedentary or physical nature. A June 2010 VA examination report shows that the Veteran could no longer hike or do any mountain climbing, which were his hobbies. He could not run or walk long distances or life or carry heavy objects. He had not worked since 1999 when he was involved in a car accident and fractured his arm and shoulder. It was apparently his other injuries, and not his ankle, that kept him from being able to drive trucks. There was no effect on his occupation. In August 2012, a VA physician provided an opinion that the Veteran's ankle and skin condition would not prevent him from securing and maintaining employment which was physical or sedentary. His nonservice-connected back disability prevented physical but not sedentary employment. A September 2012 VA examination report indicates that the Veteran's skin disability did not impact his ability to work. A September 2012 VA examination report indicates that the Veteran's ankle disability did not impact his ability to work. In May 2013, the Chief of Compensation Service provided an opinion that an extraschedular evaluation for a TDIU rating was denied. He indicated that there were no medical opinions that indicated the Veteran was unemployable due to service-connected disabilities. He was in receipt of Social Security benefits on the basis of nonservice-connected disabilities. He had not been hospitalized for any length of time for his service-connected disabilities. The totality of the evidence showed that the Veteran would not be unemployable in all environments solely due to service-connected disabilities. Therefore, a TDIU rating on an extraschedular basis was denied. In a June 2013 written statement, the Veteran's mother asserted that he was totally disabled. Moreover, on review of the entire claims file, the weight of the evidence shows that the service-connected disabilities alone are not so disabling as to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational background and work experience. Rather, the record reflects that the Veteran in this case is retired and unemployed due to a myriad of physical and mental disabilities, only one of which is his right ankle fracture residuals. All evidence of record agrees that the Veteran's skin disability has no impact on his employment, and the Veteran has never asserted that it does. There is no showing that the Veteran is unemployable due to his service-connected disabilities alone. The written statements from the Veteran, his sister, and his mother all reference either his nonservice-connected psychiatric disabilities or his nonservice-connected orthopedic disabilities in asserting that the Veteran is unable to work. None of the evidence of record asserts or suggests that the Veteran's right ankle and skin disabilities, alone, render him unable to secure and follow a substantially gainful occupation. The Social Security Administration found him unemployable due to nonservice-connected disabilities, and VA also found him unemployable for pension purposes due to his nonservice-connected disabilities. The question is not whether the Veteran is able to work. It is clear from the evidence of record that he is not. However, while laypersons are often able to provide competent opinions on matters such as these, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007), in this case, none of the lay statements of record are pertinent, because none of them asserts that the Veteran is unemployable due to his service-connected disabilities. The Board acknowledges the written statements provided by the Veteran's sister, who states that she is a psychiatric nurse. However, she merely states that the Veteran is unemployable, a fact already evident in the claims file. She makes no assertion that is unable to secure or following a substantially gainful occupation due to his service-connected right ankle and skin disabilities alone. No such opinion is of record. The Board notes the statement from the October 2009 VA examiner, who states that, while the Veteran could perform sedentary work, he was not trained to do so. The Board disagrees. The Veteran completed high school and two years of college. While he worked as a truck driver for many years, there is no evidence that he would be unable to perform some kind of sedentary work. Furthermore, the numerous opinions provided after that one indicated that the right ankle disability did not prevent the Veteran from working. Instead, it was his nonservice-connected back disability that caused such impairment. Due to the nature of the Veteran's case, the RO submitted it to the Director of Compensation and Pension Service for extraschedular consideration. Such consideration was denied, and the Board finds that this opinion is reasoned, thorough, and supported by the record. The evidence against the Veteran's claim outweighs the evidence in favor of it, as there is none that supports a finding that the service-connected disabilities rendered him unable to secure and follow substantially gainful employment. As such, entitlement to a TDIU rating, to include on an extraschedular basis, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a TDIU rating, to include on an extraschedular basis, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs