Citation Nr: 1327063	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  07-28 393	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1964 to July 1967 with service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reduced the Veteran's evaluation for service-connected prostate cancer to 40 percent effective August 1, 2007.  

In March 2011, the Board determined that the discontinuance of the Veteran's 100 percent evaluation for service-connected residuals of prostate cancer was proper, and denied assigning a disability rating in excess of 40 percent for prostate cancer, status post radical prostatectomy, from August 1, 2007.  The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was remanded for initial development and consideration to the Appeals Management Center (AMC).  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

In his April 2007 notice of disagreement, the Veteran indicated that he had melanoma which he believed was related to herbicide exposure and that he experienced blood clots in his legs and lungs secondary to his prostate cancer and surgery.  Thus, the issues of entitlement to service connection for melanoma, to include as due to herbicide exposure, and blood clots of the legs and lungs, to include as secondary to service-connected prostate cancer, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

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FINDINGS OF FACT

1.  As of August 1, 2007, the Veteran is only service connected for prostate cancer, evaluated as 40 percent disabling.

2.  The Veteran has completed four years of high school, two years of college, and additional training in photography, graphic arts, and electronic scanning; he last worked in August 2003 in graphic arts prepress/sales.

3.  The Veteran's service-connected disability is not of such severity as to preclude substantially gainful employment.


CONCLUSION OF LAW

The criteria for the assignment of a total disability rating based on individual unemployability are not met, including on an extraschedular basis.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board 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.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in March 2011 of the criteria for establishing a TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in June 2008.  Nothing more was required.   

VA's duty to assist has also been satisfied.  The Veteran's service treatment records, VA examination reports, and VA treatment records are in the file.  Private treatment records have been obtained to the extent possible.  The Veteran has not identified any additional records that he felt were relevant to his claims or that he wished for VA to obtain.  

The record indicates that the Veteran underwent a VA examination to address his service-connected prostate cancer residuals and any effect on his employability in September 2011.  The report from that examination has been included in the claims file for review.  The examination involved a review of the claims file, a thorough examination of the Veteran, the Veteran's lay contentions, and a conclusion that was supported by sufficient rationale.  Therefore, the Board finds that the examination of record is adequate to decide the Veteran's claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

As noted above, this case was remanded for additional evidentiary development including providing the Veteran with information regarding what is required to substantiate a TDIU claim and affording him a new VA examination and opinion to address his employability.  The Board is obligated by law to ensure that the AMC complies with its directives; 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 Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC provided the Veteran with the required TDIU notice in a March 2011 letter, as referenced above.  Additionally, the Veteran was afforded a new VA examination to address his service-connected disability and its effect on his employability in September 2011.  Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board.

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 claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.  Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).  

The Veteran is currently service-connected for the residuals of his prostate cancer, which is rated as 40 percent disabling.  The criteria for a total disability rating under the provisions of 38 C.F.R. § 4.16(a) are not met.

Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation. 38 C.F.R. § 4.16(b). The Board emphasizes that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities.  Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. 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 under 38 C.F.R. § 4.16(b) .

The Board itself cannot assign an extra-schedular rating in the first instance.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  Although Bagwell and Floyd only dealt with ratings under 
§ 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under 
§ 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension (C&P) Service, in addition to United States Court of Appeals for Veterans Claims (Court) precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case.  See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  That is, since the Board itself cannot assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of C&P Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008).  If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits.  In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted.  Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009).  See also Floyd, 9 Vet. App. at 96-97   (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a) , 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the Board.").

Where, as in this case, a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b).  Individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age.  38 C.F.R. § 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 .

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides."

Also, in Faust v. West, 13 Vet. App. 342 (2000), the 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 a Veteran actually works and without regard to a Veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability.

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332   (1991).

The Veteran claims that he is unemployable as a result of his sole service-connected disability.  He argues that his urinary incontinence would prevent him from giving "an employer a 100 percent effort."  Therefore, he believes that a TDIU is warranted.

The Veteran reports completing two years of college and additional training in photography, graphic arts, and electronic scanning.  See TDIU application, April 2011.  He last worked from July 2000 to August 2003 in graphic arts prepress.  Prior to that, he worked from February 1976 to June 2000 in prepress marketing/sales.  He acknowledges that he did not leave his last place of employment due to disability or that he had any lost time due to illness.  However, he argues that he became too disabled to return to work in April 2004.  

The medical evidence regarding the Veteran's employability includes private treatment records, VA treatment records, and VA examination reports.  These pieces of medical evidence show that the Veteran has been diagnosed and treated for prostate cancer, including undergoing a radical retropubic prostatectomy, and that he experiences minimal stress incontinence.  They do not indicate that he would be precluded from working due to these symptoms.  Rather, a VA examiner determined in September 2011 that the Veteran was fully employable despite his  minimal stress incontinence and erectile dysfunction.  

Although a December 2006 VA examination notes that the Veteran's prostate cancer had significant effects on his employability, due to decreased concentration, inappropriate behavior, poor social interactions, decreased mobility, problems with lifting and carrying, weakness or fatigue, urinary incontinent, and pain, the Board notes that this examination predates the appeals period for the Veteran's TDIU claim.  Further, it relies on psychiatric symptoms for which the Veteran is not service-connected.  It provides no evidence that the Veteran was unemployable solely due to his service-connected prostate cancer from August 1, 2007 to the present.  As such, it is of limited probative value.  There is simply no medical evidence to support a finding that the Veteran is unemployable due to his service-connected disability.  

The Board also notes that it is significant that the Veteran was not diagnosed with prostate cancer until September 2005 and did not undergo a radical retropubic prostatectomy, with residual incontinence, until April 2006 - two and two-and-a-half years after he retired from his job.  The Veteran himself reports that left his previous prior to the onset of his disability.  See TDIU application, April 2011.    The Board does not doubt that the Veteran's service-connected disability causes him discomfort and may have some effect on his employability, as evidenced by his 40 percent rating.  Reference is made to his statement that his urinary incontinence results in expenditures for absorbent pads as well as an overall inconvenience due to the frequency of having to use the bathroom and/or experiencing leakage.  However, he does not necessarily argue that these problems would preclude him from obtaining or maintaining substantially gainful employment.  He instead states that his urinary incontinence would prevent him from giving a 100 percent effort.  Put another way, and in consideration with his work history and opinion of the VA examiner, the Board finds that the weight of the evidence does not support the Veteran's contention that his service-connected disability is of such severity so as to preclude his participation in any form of substantially gainful employment or is otherwise outside the norm, warranting referral for extraschedular consideration.  

Accordingly, a basis for a grant of TDIU on an extraschedular basis has not been presented at any point during the appeals period.  Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disability.  As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied.  38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



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ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs