Citation Nr: 1327643 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 08-01 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ronald C. Sykstus, Attorney WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to May 1947. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2009, as support for his claim, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge of the Board. The Board advanced the appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In September 2009, the Board remanded the claim to the RO via the Appeals Management Center (AMC) for further development and consideration. After receiving the file back from the AMC, the Board issued a decision in April 2010 denying the claim, and the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In a February 2011 order, granting a joint motion, the Court vacated the Board's decision and remanded the claim to the Board for further development and readjudication in compliance with directives specified. To comply with the Court's order, the Board in turn again remanded the claim to the RO via the AMC in October 2011. The case subsequently was returned to the Board. Unfortunately, since there was not compliance with the prior remand directives, the Board again remanded the claim to the RO via the AMC in May 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled, as a matter of law, to compliance with remand directives, and the Board itself commits error in failing to ensure compliance). There since has been compliance with the Board's remand directives, allowing the Board to now readjudicate this pending claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A portion of the Veteran's records are in the "Virtual VA" system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: a right eye enucleation, rated 40-percent disabling; disfiguring facial scars, rated 30-percent disabling; partial paralysis of the seventh cranial nerve, rated 10-percent disabling; partial paralysis of the right fifth cranial nerve, rated 10-percent disabling; anosmia, rated 10-percent disabling; bilateral hearing loss, rated 0-percent disabling (so noncompensable); right maxillary sinusitis, rated noncompensable; herniorrhaphy, rated noncompensable; and residuals of a maxillary fracture, rated noncompensable. Thus, his combined disability rating is 70 percent. 2. According to the most probative medical and other evidence of record, his service-connected disabilities, if considered apart from his physical disabilities that are unrelated to his military service (i.e., not service connected), do not render him incapable of obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for a TDIU. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). If the claim is for service connection, this notice should also include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should precede the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the CAVC have clarified that, even when notice is not provided prior to initially adjudicating a claim or, if provided, was inadequate or incomplete, VA need only provide all necessary notice, give the Veteran opportunity to submit additional evidence and/or argument in response, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the essential fairness of the adjudication, as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, prior to the initial adjudication of the Veteran's claim, so in the preferred sequence, a letter dated in October 2005 was sent to him in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence that was needed to substantiate his claim, of what information and evidence that VA would obtain, of what information and evidence he was expected to provide, and that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He therefore has received all required notice concerning his claim. B. Duty to Assist The Veteran's VA treatment records, lay statements, and hearing transcript have been associated with the claims file for consideration. He was also provided VA compensation examinations to determine whether his service-connected disabilities render him unemployable so as to in turn warrant a TDIU. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file, contain a description of the history of the disabilities at issue, document and consider the relevant medical facts and principles, and provide opinions regarding the impact of his service-connected conditions on his employability. VA's duty to assist with respect to obtaining a VA examination or opinion therefore has been met. Indeed, his claims were remanded in October 2011 and May 2012 specifically to obtain outstanding VA treatment records and additional comment from the VA compensation examiner who had provided an opinion on the determinative issue of employability. And as those directives since have been completed, there has been compliance with these instructions. See D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As well, the Veteran testified at a videoconference hearing before the Board in June 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) of the Board chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, during the hearing, the presiding VLJ elicited testimony tending to support the Veteran's contentions and sought to identify any evidence not then currently in the claims file that might tend to substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of that hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated he had actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to readjudicating this claim based on the existing record. VA has provided the Veteran opportunity to submit evidence and argument in support of his claim. He has not made the Board aware of any additional evidence needing to be obtained prior to further appellate review of this claim, so no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. TDIU The Veteran alleges that his service-connected disabilities render him unemployable and, therefore, entitled to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or disabilities that have not been service connected. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15; see also 38 C.F.R. § 3.340(a) (providing that to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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 the Veteran actually works and without regard to the Veteran's earned annual income." Under VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), "substantially gainful employment," is defined as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment" and noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 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 (Robert) 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. See 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. In determining entitlement to a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See 38 C.F.R. §§ 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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. VAOPGCPREC 75-91. Thus, the criteria use a subjective (not just objective) standard. See id. VA's General Counsel further observed that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. Id. Importantly, requiring a Veteran to prove 100 percent or total unemployability is different from requiring proof that he cannot obtain or maintain "substantially gainful employment." The use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, whereas a requirement that he prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Moreover, in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Court held that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Beaty v. Brown, 6 Vet. App. 532, 537 (1994); Ferraro v. Derwinski, 1 Vet. App. 362 , 331-32 (1991). But all of that said, the mere fact that a claimant is unemployed or has difficulty obtaining employment is insufficient reason to find that he is unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment, as VA's Rating Schedule is already designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15 (2012). In order to satisfy the criteria for schedular consideration of entitlement to a TDIU, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, disabilities affecting a single body system such as orthopedic disabilities, multiple injuries incurred in action, or multiple disabilities incurred as a prisoner of war will be considered as one disability for purposes of determining whether the Veteran satisfies these threshold minimum rating requirements. Id. Turning now to the facts and circumstances of this particular case. The Veteran's service-connected disabilities are: a right eye enucleation, rated 40-percent disabling; disfiguring facial scars, rated 30-percent disabling; partial paralysis of the seventh cranial nerve, rated 10-percent disabling; partial paralysis of the right fifth cranial nerve, rated 10-percent disabling; anosmia, rated 10-percent disabling; bilateral hearing loss, rated 0-percent disabling (so noncompensable); right maxillary sinusitis, rated noncompensable; herniorrhaphy, rated noncompensable; and residuals of a maxillary fracture, rated noncompensable. Thus, his combined disability rating is 70 percent. See 38 C.F.R. § 4.25 (VA's combined ratings table). The rating requirements for consideration of a TDIU under § 4.16(a) resultantly are met, that is, without having to resort alternatively to the special extra-schedular provisions of § 4.16(b). Also notably, he receives special monthly compensation (SMC) for anatomical loss of his right eye. His work history shows he retired as a farmer in 1983 and had prior work experience as a maintenance mechanic for arcade games. See his September 2006 TDIU application (on VA Form 21-8940). He stated in his January 2008 Substantive Appeal to the Board (on VA Form 9) that he believed the loss of his right eye and vision problems precluded his given occupation as a bus driver and his facial scars impacted his employability as well. He also indicated in his June 2009 hearing testimony that he believed the service-connected blindness in his right eye (from the enucleation) and partial paralysis of his upper extremities, especially his hands, and his hearing loss precluded his ability to work. He had a VA general medical examination in April 2006. After examining him, the examiner commented that the Veteran's service-connected loss of his right eye prevented him from working as a bus driver after World War II, but that it did not prevent him from working as a farmer (a job, as mentioned, he had for many years until retiring in 1983 or thereabouts). The VA examiner then commented that the Veteran's service-connected facial scars also did not affect his ability to be employed, and that his non-service connected chronic obstructive pulmonary disease (COPD) would not prevent him from performing sedentary or light physical activity. This examiner, however, did not comment on the Veteran's several other service-connected disabilities - namely, the partial paralysis of his seventh cranial nerve and partial paralysis of his right fifth cranial nerve. There also was no mention of the effect of the hearing loss on his employability. The Board found those oversights significant since the Veteran had testified during his hearing that these conditions, especially when considered collectively, precluded him from working. So to address any potential employment handicap resulting from these additional service-connected disabilities (that is, in addition to those the April 2006 VA examiner had considered), the Board remanded the Veteran's TDIU claim in September 2009 for this supplemental medical opinion. The Veteran had this additionally requested VA compensation and pension examination (C&P Exam) in November 2009, on remand, and the report of the evaluation indicates he described his usual occupation as farmer, also noting that he had been a farmer, working with cows, hay, and chickens, for 20 to 30 years. He reiterated that he was now retired and had been since the early 1980s. As cause of his retirement, he listed medical (physical) problems, but specifically indicating complications of a prostatectomy. After reviewing the results of the Veteran's objective clinical examinations and the other pertinent evidence in the claims file, the VA C&P examiner determined it less likely than not (less than 50 percent probability) the Veteran's service-connected disabilities precluded his ability to engage in all forms of substantially gainful employment. In discussing the medical rationale, this VA examiner indicated he had based this unfavorable opinion on several factors. First, this examiner observed the Veteran had had these service-connected disabilities since service, and that, based on a review of his medical records and the fact there had not been any subsequent surgery, these disabilities had not progressed in severity and had remained constant since service. Second, the examiner noted the Veteran's service-connected disabilities did not prevent his employment for at least 25 years (referring to his continuous work during that time frame as a farmer), also pointing out that he had stopped working in the early 1980s because of his prostate cancer and its treatment, which his records show had occurred in January 1980. The examiner also noted the Veteran now had urinary incontinence/suprapubic catheter due to the prostate cancer treatment, as well as COPD and congestive heart failure (CHF) - none of which are service connected and all of which are limiting factors with respect to employment. Third, the examiner noted the innervation in the Veteran's hands was not affected by his service-connected cranial nerve palsies. Rather, explained this VA examiner, the Veteran's hand condition and impairment are attributable to carpal tunnel syndrome (CTS) - another condition that is not service connected. The examiner then added, "[i]n fact his VA PCP [primary care provider] has stated that his hand condition is due to carpal tunnel syndrome." But pursuant to the February 2011 Joint Motion for Remand and Court Order, that November 2009 VA opinion was determined to be inadequate. Although the examiner had cited to the Veteran's PCP's diagnosis of carpal tunnel syndrome, there was no indication of any such statement by the Veteran's PCP in the record, nor was there any evidence of a carpal tunnel syndrome diagnosis. This, then, prompted the Board to twice remand this claim to document this evidence in the file - initially in October 2011 and again in May 2012. And the additional VA treatment records mentioned since have been obtained and associated with the claims file. These records clearly document the Veteran's carpal tunnel syndrome, including in May 2010, December 2010, March 2011, and May 2011. The records of additional prosthetic consultations also show a brace was prescribed for this condition, to try and stabilize his hand and wrist. In an October 2011 supplemental opinion, the VA examiner cited to these records as support for his conclusion that the Veteran's hand impairment was due to carpal tunnel syndrome. He added that the median nerve affected in carpal tunnel syndrome is completely different from the cranial nerve conditions the Veteran is service connected for. They are located in different places, and there is no anatomic overlap. Therefore, carpal tunnel syndrome was not related to his service-connected conditions. So, ultimately, there is a clear distinction according to this VA compensation examiner between the employment handicap the Veteran has on account of his several physical disabilities, which are not service connected, and the functional impairment resulting from his service-connected disabilities. The most recent VA compensation examiner does not believe the Veteran's service-connected disabilities, if considered apart from these several other conditions that are not service connected, preclude him from obtaining and maintaining employment that is substantially gainful. Cf. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (indicating VA adjudicators must be able to distinguish, by competent medical evidence, the extent of the Veteran's symptoms that is due to service-related causes, i.e., service-connected disability, from that which is not). The Board is certainly sympathetic to the Veteran's impairment due to his service-connected disabilities. However, even he personally acknowledged during his November 2009 VA C&P Exam that he had retired many years earlier (after having worked the same job for many years) because of the impairment imposed by his prostate cancer and its complications and treatment. That statement is inconsistent with his contrary assertions regarding being unable to engage in substantially gainful employment, instead, on account of his service-connected disabilities. This inconsistency tends to undermine his credibility so as to, in turn, lessen the probative weight of his assertion that his service-connected disabilities preclude his employment. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Hence, based on the medical opinions obtained in April 2006, November 2009, and October 2011, especially when considered in combination and along with the other medical and lay evidence discussed, the Board finds that, while the probative (competent and credible) evidence establishes the Veteran is indeed unemployable, this evidence does not establish that his unemployability is due to his service-connected disabilities, if only considering them, as opposed to the other causes and factors mentioned that have no connection with his military service. The November 2009 and October 2011 VA C&P exam reports are well-reasoned and based on an objective clinical evaluation of him and an independent review of his claims file for the pertinent medical and other history, including his employment history and VA treatment records. So the reports, especially in the aggregate, have the proper factual foundation and predicate in the record and, therefore, in combination are entitled to a lot of probative weight. Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). For these reasons and bases, the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU - in turn meaning there is no reasonable doubt to resolve in his favor and that his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for a TDIU is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs