Citation Nr: 1326200 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-07 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1951 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in August 2011 when it was remanded for development and adjudication. The case was again before the Board in April 2013, when it was remanded for additional development. Please note 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: arthritis of the lumbar spine rated 20 percent; right lower extremity radiculopathy rated 40 percent; left L-5 radiculopathy rated 20 percent; and scars rated 0 percent; the combined rating for the service connected disabilities is 70 percent (employing the bilateral factor of 5.2 percent for radiculopathy). 2. The Veteran's service-connected disabilities alone do not preclude substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for entitlement to TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 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). Duty to Notify 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/Hartman 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 Board notes that although the Veteran was provided a VCAA notice in September 2005 with regard to the increased rating claim, from which the claim for a TDIU rating arose, a close review of the claims file found that the Veteran was not provided a VCAA notice letter that explains the information and evidence not of record that is necessary to substantiate a claim specifically for a TDIU rating. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the Supreme Court reversed the case of Sanders v. Nicholson, 487 F.3d 881 (2007), which had held that any error in VCAA notice should be presumed prejudicial and that VA must always bear the burden of proving that such an error did not cause harm. In reversing Sanders, the Supreme Court in essence held that - except for cases in which VA has failed to inform the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki, 129 S. Ct. at 1704-06. Neither the Veteran nor his representative has alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim. Additionally, following the August 2011 Board decision which remanded the TDIU claim for development, the Veteran was sent letters in November 2011, May 2012, April 2013, and May 2013 requesting additional evidence and providing an update as to the development of his claim. In response, the Veteran submitted private medical records in support of his claim and attended numerous VA examinations. Additionally, since August 2011, his TDIU claim was the subject of the June 2012 RO rating decision, the June 2012 supplemental statement of the case (SSOC), the April 2013 Board remand, and the July 2013 SSOC, which either addressed why his claim was denied or what information was lacking to substantiate the claim. As such, the Veteran and his representative had actual knowledge of the development of his claim. In September 2012, VA received a statement from the Veteran that read "I sent you every thing I had for four year. The VA has all of my records." As such, the Veteran has had actual knowledge and actively participated in the development of his claim, and is therefore not prejudiced by the lack of notice regarding how to substantiate a TDIU claim. See Sanders, 487 F.3d at 889 (the purpose of section 5103(a) notice is not frustrated, and the claimant is not prejudiced, when the benefit sought cannot be awarded as a matter of law). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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). Duty to Assist The Veteran's pertinent VA and private treatment records have been secured. The RO arranged for VA examinations in May 2012, October 2012, and July 2013. VA attempted to secure the Veteran's Social Security Administration (SSA) records, however, a July 2010 response from SSA indicated his records were destroyed. A formal finding of unavailability is included with the record. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience; however, neither non-service-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). Thus, the Board may not consider the effects of the Veteran's advancing age on his ability to function. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's current service-connected disabilities and respective ratings are: arthritis of the lumbar spine rated 20 percent; right lower extremity radiculopathy rated 40 percent; left L-5 radiculopathy rated 20 percent; and scars rated 0 percent. The Veteran's combined rating for his service connected disabilities is 70 percent, with one disability ratable at 40 percent; therefore he meets the schedular requirements of 38 C.F.R. § 4.16(a). To establish entitlement to a TDIU rating, however, it must also be shown that, due to the service-connected disabilities alone, the Veteran is unable to obtain or pursue substantially gainful employment. The Veteran contends that due to his service-connected disabilities, he is unable to maintain substantially gainful employment. In the November 2006 NOD the Veteran stated that he was unable to do any type of work. A treatment record from August 2008 shows the Veteran works in his home garden and walks to his horse barn during the day. The Board notes here that the Veteran apparently did not respond to the RO's request (pursuant to the most recent remand) to furnish information regarding education and work history. However, it appears from references in various medical records that the Veteran has a 12th grade education and has at least some employment history as a drilling roughneck and as a drilling supervisor. A February 2010 VA examination noted the Veteran was medically retired in 1984 and received Social Security Disability. The examination report does not state the underlying disability, and as noted above, SSA records were destroyed. However, private treatment records show that in 1984 the Veteran sustained injury to his neck and back after he slipped on an oily beam during the course of his employment. Treatment records from this time show he had prior spinal surgeries in 1970 and 1981 with excellent results and was able to return to full time employment. However, the injuries in 1984 rendered him totally and temporarily disabled. The Veteran continued to receive treatment, including additional surgery, through 1987. Records from 1987 again show he was totally and temporarily disabled. A May 2012 VA spine examination noted the Veteran leads a very sedentary life; he really does not do much of anything and was not working. The examiner noted the Veteran's back condition impacted his ability to work, but did not provide any rationale supporting this conclusion. Additionally, on May 2012 General Medical examination, a different VA examiner noted the Veteran last worked in May 1984 because of his back disability and inability to function. The examiner opined that the Veteran's scars did not impact his ability to work. However, the examiner noted that the Veteran's ability to work was impacted by his cardiac artery disease (CAD), which is not service connected. The Veteran underwent a genitourinary VA examination in October 2012. The examiner noted the Veteran's occupation as a rough neck, tool pusher, and drilling supervisor. The examiner noted the Veteran retired in 1984 because of an on-the-job injury. In October 2012 an addendum opinion to the May 2010 spine examination was provided discussing the Veteran's radiculopathy. In the opinion, the examiner concluded that the Veteran's current spinal and radicular condition would not affect active or sedate employment. Pursuant to the April 2013 remand, the Veteran was afforded another VA examination in July 2013. The examiner noted the Veteran retired from work as a drilling supervisor in 1984 due to an on-the-job back injury. The examiner noted the Veteran reported his back prevented him from working. The Veteran complained of pain in his back and legs with prolonged standing, problems bending, twisting and lifting. Ambulation was noted to be limited to 100 yards. The examiner also noted the Veteran has co-morbid conditions of diabetes, diabetic neuropathy, hypertension, chronic kidney disease, neck pain, aortic valve stenosis, and anemia. The Veteran is not service connected for any of these conditions. Following review of the Veteran's claims file, and the previous VA examinations from 2012, the examiner opined that it was less likely than not that the Veteran's service-connected disabilities precluded gainful employment consistent with his education and work experience. After reviewing the record, the Board believes this conclusion is supported by the overall evidence. By the Veteran's own contentions as provided at the VA examinations, he retired in 1984 as the result of an on-the-job injury to his back, not due to the back disorder related to service. The medical evidence of record also shows he worked full time up until 1984 when he fell on the oily beam and required treatment, including surgery, for his back injury. Although the Veteran did undergo surgical procedures for the service-related back disorder prior to the 1984 employment-related injury, there are indications that the service related back problem improved with surgery and the record shows that he in fact continued to work until the 1984 job injury. After reviewing the record from a longitudinal perspective, the Board finds that the preponderance of the evidence is against entitlement to TDIU. The evidence is against a finding that the Veteran's service-connected arthritis of the lumbar spine, radiculopathy, and scars are of the nature and severity to prevent substantial gainful employment. The evidence shows that a number of nonservice-connected disorders, together with a superimposed job-related back injury, are the reasons for his retirement and apparent inability to work. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs