Citation Nr: 1327752 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 07-20 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU), for accrued purposes. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from August 1966 to January 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in March 2009. In August 2009, the Board denied the Veteran's claim for TDIU, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2010, the Court vacated and dismissed the appeal due to the Veteran's death in June 2010, and the absence of a motion to substitute by an appropriate party. See Landicho v. Brown, 7 Vet. App. 42 (1994); see also Phillips v. Shinseki, 581 F.3d 1358 (Fed.Cir 2009). In January 2011, the Board dismissed the Veteran's claim for TDIU due to his death, and his spouse (appellant) subsequently filed a motion for substitution, which was recognized and approved by the RO in June 2012. The Board remanded the appellant's appeal for additional development in January 2013. FINDINGS OF FACT 1. At the time of the Veteran's demise in June 2010, his service-connected disabilities included idiopathic thrombocytopenic purpura, cured by splenectomy; rated 30 percent disabling since January 1969, and thrombophlebitis of the right lower extremity with varicose veins, rated 20 percent disabling since January 2002. The combined rating was 40 percent. 2. The Veteran had a high school education and worked as a fuel deliveryman for 20 years, and as a rural carrier for the U.S. Postal Service for 19 years, when he retired on disability in November 2006. 3. The Veteran's service-connected disabilities were not shown to preclude him from securing and following substantially gainful employment prior to his demise. CONCLUSION OF LAW The criteria for TDIU, for purposes of accrued benefits, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.655, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 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 a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the appellant dated in June, July and September 2012. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. The Veteran's service treatment records (STRs) and all VA and private medical records, including records from the Social Security Administration (SSA) have been obtained and associated with the claims file. The Veteran during his lifetime, and the appellant were afforded opportunities for personal hearings, but declined. Further, neither the appellant nor her attorney have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of her appeal. Additionally, the case has been subject of two prior Board remands. The AMC associated all available treatment records with the claims folder, and readjudicated the claim for TDIU for accrued purposes. Under the circumstances, the Board finds that the AMC has substantially complied with the remand orders, and that no further action is necessary in this regard. 38 C.F.R. § 3.655 (2012); Routen v. West, 142 F.3d 1434, (Fed. Cir 1998); see also, D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue addressed in this decision is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appellant's appeal. Legal Criteria The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid) to which the veteran was entitled at the time of his death under existing ratings or based on evidence in the file or constructively of record at the time of his death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2012). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2012). Under the applicable criteria, a total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2012). Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2012). TDIU Prior to his death in June 2010, the Veteran submitted a claim for TDIU in February 2007. The current contention in this regard is essentially that the Veteran was entitled to TDIU due to his service-connected disabilities prior to his death, and that the appellant should be awarded the benefits that would have gone to the Veteran had he lived. In this case, the Veteran did not meet the schedular criteria for TDIU at any time prior to his death. The Veteran's service-connected disabilities included idiopathic thrombocytopenic purpura, rated 30 percent disabling and thrombophlebitis of the right lower extremity with varicose veins, rated 20 percent disabling. His combined disability rating was 40 percent. The Veteran did not have a single disability rated 40 percent disabling or a combined rating of 70 percent or more. Therefore, he did not meet the threshold requirements for TDIU. For the appellant to prevail on a claim for TDIU, the record must reflect some factor which takes the Veteran's case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran was capable of performing the physical and mental acts required by employment due solely to his service-connected disabilities, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this regard, the Board notes that the Veteran's idiopathic thrombocytopenic purpura - an autoimmune disorder diagnosed by low platelet count, was cured by splenectomy in service, and that it had been asymptomatic since service. The Veteran's only other service-connected disability, thrombophlebitis of the right leg with varicose veins was similarly asymptomatic for many years. The medical reports do not show any signs or symptoms of thrombophlebitis or any actual or function impairment of the right lower extremity due any vascular insufficiency or deep vein thrombosis. While the appellant asserted that the Veteran suffered from pain, swelling and redness in his right leg for many years and had difficulty ambulating because of his leg pain, the medical reports of record did not show any significant symptoms associated with his service-connected vascular disorder. Rather, the evidence showed that the Veteran had severe arthritis in the right knee that eventually resulted in a total knee arthroscopy in December 2003. A VA orthopedic treatment note in April 2003, showed that the Veteran had significant pain and crepitus on ambulation with severe tricompartment degenerative arthritis in both knees, worse on the right, and that surgical intervention was needed. While the records showed that the Veteran was treated for a hematoma on the right knee due to a trauma in September 2003, the records showed that the right leg was otherwise neurovascularly intact. The appellant contends that the Veteran was unemployable prior to his death. However, there is no competent evidence that his service-connected disabilities, alone, rendered him unemployable. On the contrary, the evidence showed that the Veteran was found to be unemployable by the SSA based on his total left hip and total right knee arthroscopies, severe left knee arthritis, chronic kidney disease and history of coronary artery bypass. In fact, the Board notes that on his application for SSA disability in 2007, the Veteran made no mention of his service-connected disabilities as a cause for his inability to work, nor were his service-connected disabilities shown to have played any role in his unemployability. Likewise, a letter from the Office of Personnel Management, dated in January 2007, stated that the Veteran was found to be disabled for his position as a rural carrier, due to his right knee replacement, deteriorated left hip and deteriorated left knee, only. When examined by VA in May 2007, the Veteran complained of aching in and around his varicose veins and wore compression stockings, which he reported helped. The examiner noted that there had been no significant change in the Veteran's vascular status since the prior examination, that he had no hospitalizations for thrombophlebitis or surgeries for his varicose veins, and that he was not taking any medications for his service-connected disabilities. The Veteran's thrombophlebitis was stable and there was no evidence of edema, skin discoloration, angioneurotic edema, stasis pigmentation, eczema or ulcerations. The examiner opined that the Veteran's service-connected right leg disability did not preclude exercising or physical activities, and had no affect on his daily activities. Concerning the Veteran's ITP, the examiner indicated that there was no history of dyspnea, weight loss, weakness, headaches, chest pains, claudication, recurrent infections, active bleeding or bleeding tendency, and that there were no symptoms of other end organ pathology. The diagnosis was ITP, cured by splenectomy. The examiner opined that the Veteran's ITP was in remission, and that it had no effect on his usual daily activities. While the Board does not dispute that the Veteran experienced some industrial impairment due to his service-connected disabilities during his lifetime, the degree of impairment was adequately reflected by the combined schedular rating of 40 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record failed to show that his service-connected disabilities, either singularly or in combination, were so severely disabling as to render him unable to secure or follow substantially gainful employment. The evidence showed that the Veteran's service-connected ITP and thrombophlebitis with varicose veins of the right leg had been stable and essentially asymptomatic for many years prior to his death. Moreover, the evidence showed that the Veteran had additional nonservice-connected disabilities, including left total hip arthroplasty, total right and left knee arthroplasties due to severe arthritis, coronary artery disease with six vessel by-pass grafting, a history of myocardial infarctions and at least one stroke which had a significantly impact on his physical activities and his ability to maintain substantially gainful employment prior to his demise. In fact, the evidence showed that the Veteran retired on disability from the Postal Service in November 2006, because of severe degenerative joint disease of the left hip that caused significant physical limitations at work, as well as severe cognitive problems. (See February 2008 St. Elizabeth Region MC report). However, there is no objective or competent evidence which showed that the Veteran's service-connected disabilities, alone, rendered him unemployable. In sum, the Veteran's service-connected disabilities were not so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment, nor did the evidence show that his service-connected disabilities rendered him individually unable to follow any substantially gainful occupation prior to his demise. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU, for purposes of accrued benefits is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs