Citation Nr: 1326174 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-29 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2011, the Veteran testified at a hearing at the RO before the undersigned Acting Veterans Law Judge. A transcript of this testimony is associated with the claims file. The case was previously before the Board in January 2012, when it was remanded for examination and medical opinions. The requested development has been completed. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: migraine headaches at a 30 percent disability rating; chronic lumbosacral strain at a 20 percent disability rating; right elbow epicondylitis at a 10 percent disability rating; chronic obstructive pulmonary disease (COPD) at a 10 percent disability rating; recurrent chest pains of probable cardiac origin at a 10 percent disability rating; peptic ulcer at a 10 percent disability rating; actinic keratoses with removal of basal cell carcinoma at a 10 percent disability rating; dermomycosis of the groin area at a 10 percent disability rating; residuals of a fracture of the left thumb (dominant hand) at a 10 percent disability rating; and, hemorrhoids at a noncompensable disability rating. 2. The Veteran's combined disability rating is 70 percent and he has a "single" service-connected disability rated at 40 percent or more when considering disabilities affecting a single body system. 3. The Veteran has a college level education and occupational experience as an air craft mechanic. 4. The probative evidence of record indicates the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Upon receipt of a complete or substantially complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated November 2007, which was prior to the September 2008 rating decision. This letter provided the notice for substantiating a TDIU claim, and also the general criteria for assigning disability ratings and effective dates. See Dingess, 19 Vet. App. at 473. Consequently, no additional notice is necessary. VA has obtained the Veteran's service treatment records, and post-retirement service department treatment records. VA has also assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded him the opportunity to provide testimony and written argument related to his claim. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and the Veteran has not contended otherwise. For this claim, the Veteran has been afforded multiple VA examinations to address the question whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. Examination reports that were produced early in the claims process were not found to be wholly adequate. More recent examinations that were conducted in February and March 2012 pursuant to the Board's January 2012 remand do address those aspects of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Thus, there has been substantial compliance with the Board's remand directives. See, e.g., D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (holding that not strict, but substantial compliance with the terms of a Board's engagement letter is required) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)). Thus, the duty to assist has been met and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) . If the total rating is based on a disability or combination of disabilities for which the Schedule of 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(a). The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 the impairment caused by any disabilities that are not service connected. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). In Faust v. West, 13 Vet. App. 342 (2000), the United States 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 the veteran actually works and without regard to the veteran's earned annual income." Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a veteran's earned annual 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. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The United States Court of Appeals for the Federal Circuit has clarified that "[r]equiring a veteran to prove that he or she is 100 percent unemployable is different than requiring him or her to prove that he or she cannot maintain substantially gainful employment. The use of the word 'substantially' suggests an intent to impart flexibility into a determination of the veteran's overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility." See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he or she is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. The Board must consider the effects of the Veteran's service-connected disabilities in the context of his employment and educational background. See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992). In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court indicated the Board cannot deny a veteran's TDIU claim without producing evidence, as distinguished from mere conjecture, showing the veteran can perform work that is substantially gainful versus just marginal. See also Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. A claim for a TDIU presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he is unable to work due to his service-connected disabilities and, therefore, entitled to TDIU. In written statements and during his August 2011 Travel Board hearing, he attributed his inability to work primarily to his service-connected left thumb disability and his skin disability. He asserted that the left thumb disability of his dominant hand precluded him from using tools which was necessary in his occupation as an aircraft mechanic. Similarly, he asserted that actinic keratoses on his arms resulted in easy bruising and bleeding which generally precluded physical labor and necessitated he stay out of the sun. The Veteran's service-connected disabilities are: migraine headaches at a 30 percent disability rating; chronic lumbosacral strain at a 20 percent disability rating; right elbow epicondylitis at a 10 percent disability rating; COPD at a 10 percent disability rating; recurrent chest pains of probable cardiac origin at a 10 percent disability rating; peptic ulcer at a 10 percent disability rating; actinic keratoses with removal of basal cell carcinoma at a 10 percent disability rating; dermomycosis of the groin area at a 10 percent disability rating; residuals of a fracture of the left thumb (dominant hand) at a 10 percent disability rating; and, hemorrhoids at a noncompensable disability rating. The Veteran's combined disability rating is 70 percent. Also, although he does not have a singled service-connected disability rated as 40 percent disabling, when his musculoskeletal disabilities (chronic lumbosacral strain, right elbow epicondylitis, and residuals of a fracture of the left thumb (dominant hand)) are combined, they are treated as a "single" disability for the purpose of determining whether the schedular requirements are met for a TDIU because they affect a single body system. Here, the three musculoskeletal disabilities combine to be 40 percent disabling; thus the schedular requirements are met for a TDIU. 38 C.F.R. § 4.16(a). The evidence must still show to an equipoise standard that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. Id. The Veteran retired in 1976 after over 20 years of active duty service. As a military retiree he is eligible to receive medical care from service department medical facilities. Accordingly, the record contains a large volume of service department treatment records related to his treatment subsequent to his retirement from service. The evidence of record reveals that the Veteran has a college level education. He has a long occupational history as an air craft mechanic, serving as such during active duty and continuing to be employed as a civilian aircraft mechanic for military planes after his retirement from service. In October 2007, the Veteran submitted his claim for TDIU on a VA Form 21-8940 along with some attached evidence. He reported that he last worked as a civilian air craft mechanic in April 2003. An October 20007 letter from the Veteran's physician states that the "patient is unemployable in his area of expertise due to arthritis of the left thumb and visual problem and multiple other conditions he currently has." This letter only indicates that the Veteran is unemployable in his area of expertise and not that he was unable secure or follow a substantially gainful occupation. Moreover, it specifically refers to visual problems which are not part of a service-connected disability. An October 2007 letter from the Veteran's supervisor at his last job was submitted. It stated that the Veteran's left thumb arthritis made it difficult for him to hold tools and that he often dropped tools and was clumsy. The supervisor also stated that he felt that the Veteran's left thumb disability was "a determining factor that accelerated his recent retirement." Post-retirement, service department treatment records indicate a lengthy list of medical problems being treated, many of which are nonservice-connected. The circumstances of the Veteran's leaving his last employment in April 2003 are in question. The letter from his supervisor indicated that the Veteran retired, albeit his left thumb disability was a factor. In November 2007, the Veteran reported merely that he had retired from his last job in 2003. At the August 2011 hearing the Veteran asserted that he retired due to reasons of physical disability, but he also acknowledged that his Social Security benefits were age related retirement benefits and not disability benefits. Besides his statements, and the assertion of his former supervisor, the Veteran has not submitted any other evidence that him leaving employment in 2003 was as the result of disability as opposed to merely retiring because of his age. Also, at the hearing the Veteran indicated that he was unemployed, but that he had not sought any employment since leaving his last aircraft mechanic job in 2003. In July and August 2008, VA Compensation and Pension examinations of the Veteran were conducted. After full examination and with consideration of the Veteran's medical history including identifying which disabilities were service-connected as well as nonservice-connected, the examiner stated that: The [V]eteran's usual occupation is as an aircraft mechanic. This was his occupation in the military as well as his occupation after retirement. He retired from this in 2003. He states that the main limitation that he had while he was still working was the problem with his left thumb; however, his spine, shoulders and right elbow also interfered with his occupation. The [V]eteran's functional limitations imposed by his service-connected disabilities - which would include limitations in his left handed grip strength, also limitations in dexterity. As the [V]eteran is left-handed, he would have difficulty with his pincer grip of picking up small objects using his left hand. He would be limited in the prolonged standing, prolonged walking or prolonged sitting because of the problems with his lumbar spine. The examiner also indicted other impairment to physical labor such as heavy lifting or repetitive motion. In February and March 2012 another series of Compensation and Pension examinations of the Veteran were conducted to evaluate all his service-connected disabilities with an emphasis on determining whether they precluded him from securing and following a substantially gainful occupation. After consideration of all the examination results, the examiner stated: Based upon the Veteran's service-connected conditions: [t]he Veteran is able to walk for one block, stand for two minutes, sit for 15 minutes prior to position change. He would be able appropriately interact with the general public in a position such as receptionist, he would be able to work at a desk with frequent breaks and position changes at least every 15 minutes. He would be able to pick up objects with his left hand that did not require fine motor skills or a firm gripping or grasping. (For example he would not be able to pick up and manipulate items such as nuts, bolts or a pencil or safely use hand tools such as a hammer, screw driver, or saw.) The Veteran would need a flexible work schedule secondary to the prostrating attacks associated with the migraine headache. The case was submitted to the Director of the Compensation Service, for extra-schedular consideration pursuant to the Board's January 2012 remand because the schedular requirements were not yet met at the time of the remand. TDIU on such a basis was denied in May 2013. See 38 C.F.R. § 4.16(b). The evidence of record reveals that the Veteran has a college education and a long employment history as an aircraft mechanic. He left employment in 2003. He maintains that he left employment due to disability, however he has also identified leaving employment as mere retirement in other documents submitted to VA. Also, his assertion of disability retirement is countered by his admission that he is receiving age-related Social Security retirement benefits and not disability benefits. The examination reports of record do indicate that the Veteran's service-connected disabilities interfere with his employment as an aircraft mechanic, but they do not indicate that he is unable to maintain all forms of substantially gainful employment. Rather, they indicate specific impairment to the physical activity associated with being an aircraft mechanic. Moreover, several nonservice-connected disabilities also are indicated as impacting the Veteran's employment in this field. By the Veteran's own admission he stopped working in 2003 and has not sought employment since. Here, the VA examiner's opinions outweigh the private opinion and the Veteran's statements. The examiners provided persuasive opinions with a comprehensive explanation after physical examination and a review of the evidence of record. The October 2007 opinion is of less evidentiary value as it included nonservice-connected problems and contained no explanation. The Veteran's own opinion on the matter has limited evidentiary value as he is not shown to have the expertise to provide a competent opinion on this complex medical question. In view of the findings from the evidence of record, the Board concludes that TDIU is not warranted. 38 C.F.R. § 4.16. For these reasons and bases, the preponderance of the evidence is against the claim for TDIU, in turn meaning the benefit-of-the-doubt doctrine does not apply, and that this claim resultantly must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to TDIU is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs