Citation Nr: 1326737 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 99-13 873A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from March 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey which, in pertinent part, denied the Veteran's claim for TDIU. The Board remanded the instant matter in April 2003, December 2005, January 2007, December 2010 and November 2012 for additional development and adjudication, including such actions with regards to previous claims which had been determined to have been intertwined with the instant claim. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals VA treatment records dated through May 2013 as well as a May 2013 VA audiology examination, which were not considered by the RO in conjunction with the instant claim. However, the Veteran's representative waived RO consideration of any additional evidence and requested that the Board consider the Veteran's case immediately in an April 2013 statement. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The Veteran's service connected disabilities include posttraumatic stress disorder (PTSD), rated as 50 percent disabling; degenerative changes to the lumbar spine with left lower extremity radiculopathy, rated as 40 percent disabling; calluses of both feet, status-post osteotomy, rated as 10 percent disabling; a left hip strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling and bilateral hearing loss, rated as noncompensably disabling. 2. The Veteran's combined disability rating is 80 percent. 3. The evidence of record establishes that the Veteran was substantially and gainfully employed through February 2012. 4. While the Veteran's service-connected disabilities meet the percentage requirements for the award of a schedular TDIU, the weight of the medical opinion and other evidence indicates that the Veteran's service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment after February 2012. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. A February 2007 post-rating letter fully satisfied the duty to notify provisions as to claim for TDIU. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The timing deficiency with regards to the February 2007 post-rating letter was cured with readjudication of the claim in the April 2012 supplemental statements of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, the Veteran has not alleged prejudice with regard to any notice deficiencies. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment records, VA outpatient treatment records, Social Security Administration (SSA) records, various private treatment records and the VA examination reports. Additionally, the Board finds there has been substantial compliance with its April 2003, December 2005, January 2007, December 2010 and November 2012 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the Appeals Management Center (AMC) afforded the Veteran a VA examination to determine whether he was able to obtain or retain employment due to his service-connected disabilities, which the Veteran attended. A supplemental statement of the case was issued in February 2013. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeals. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. TDIU The Veteran contends that he is unable to work due to his various service-connected disabilities, including the symptomatology associated with his service-connected PTSD. A 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. A total disability rating 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). Consideration may be given to a Veteran's 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service connected disabilities include PTSD, rated as 50 percent disabling; degenerative changes to the lumbar spine with left lower extremity radiculopathy, rated as 40 percent disabling; calluses of both feet, status-post osteotomy, rated as 10 percent disabling; a left hip strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling and bilateral hearing loss, rated as noncompensably disabling . His combined rating is 80 percent. See 38 C.F.R. § 4.25. This combined rating satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b(7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further 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." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Here, there is no indication that the Veteran, in fact, is or has been rendered unemployable due to his service-connected disabilities at any point pertinent to this appeal. In his April 2011 VA examination, the Veteran reported that he had worked as a truck driver for 15 years after service, that he had earned his college degree in 1997 and that he subsequently began working as a social worker. In a June 1997 VA treatment note, the Veteran reported that he was working moving furniture after completing school. In his June 2011 VA examination, the Veteran reported that he had given up his full-time position as the director of a public agency on March 1, 2011. The Board notes that while the February 2013 VA examiner reported that the Veteran had stopped working full-time in February 2012, this appears to be a drafting error as the Veteran has consistently maintained that he stopped working in March 2011 and then worked part-time until February 2012. As the record establishes that the Veteran was employed full-time prior to March 1, 2011, a TDIU is not warranted. For the period beginning on March 1, 2011, the Veteran reported that he had worked as a consultant for his former public agency for two days per week through approximately February 2012. He indicated in a February 2012 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) and that he had earned $1,180.00 per month, or a total of $21,939.00 in the last 12 months. The Board notes that this income exceeds the poverty rate for a single person according to the United States Department of Health and Human Services poverty guidelines. As the Veteran has reported earning more than the poverty rate, his employment, though part-time, between March 2011 and February 2012 is considered to be substantially gainful for VA purposes. Moreover, the VA examiners who have provided opinions in this matter have determined that the Veteran was able to secure and maintain gainful employment. The June 2011 VA examiner determined that the Veteran's PTSD symptoms resulted only in reduced reliability and productivity despite his reports that he had retired from his previous employment due to chronic pain and psychiatric problems. A February 2013 VA psychiatric examiner opined that the Veteran was able to secure and maintain gainful employment as he voluntarily terminated his employment the previous year and that he reported that he still "helped out" at his previous place of employment on a volunteer basis. A February 2013 VA examiner also determined that the Veteran's corn/callus condition, degenerative arthritis of the spine and hip condition did not impact physical and sedentary employment. A May 2013 VA examiner determined that the Veteran's bilateral hearing loss and tinnitus did not impact his ability to work. In addition, the Veteran reported during his February 2013 VA examination that he occasionally volunteered for his previous place of employment after he stopped working completely in 2012. The Board emphasizes that the Veteran has not furnished any competent, supporting evidence in connection with this claim. Thus, the evidence does not indicate that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. This is evident from the fact that the Veteran has been substantially gainfully employed through February 2012 and that he continued to volunteer with his previous place of employment after February 2012. Accordingly, the Board concludes that the weight of the medical opinion and other objective evidence indicates that the Veteran's service-connected disabilities do not render him unemployable after February 2012. The Board notes the Veteran's representative's argument, as detailed in the May 2013 Informal Hearing Presentation, that entitlement to TDIU was warranted as the Veteran had been found to be permanently and totally disabled for purposes of a nonservice-connected pension in January 1998. The Board notes that a June 1998 rating decision had awarded the Veteran a nonservice-connected pension and determined that he was unable to secure and follow a substantially gainful occupation due to disability. However, subsequent to this determination, this Veteran was employed in various professional capacities, including as a health admission director, as a social worker and as director of a county agency. This extensive work history suggests that the Veteran was not permanently and totally disabled as he was able to maintain gainful employment. In addition, the text of this June 1998 rating decision attributed the Veteran's inability to work to his substance abuse, hypertension, heart disease and back condition; service-connection has not been granted for substance abuse, heart disease or hypertension. Moreover, the Veteran's representative has provided no argument as to why any findings made in 1998, prior to the Veteran successfully working for 15 years, including as working as a supervisor for 10 years, were determinative as to whether the Veteran has been unable to secure or follow a substantially gainful occupation since February 2012. Furthermore, to whatever extent the Veteran and/or his representative attempt to establish the Veteran's entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that neither the Veteran nor his representative is shown to possess expertise in medical or vocational matters. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the claim for a TDIU must be 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, 53-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs