Citation Nr: 1327977 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-17 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 5, 2011. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1970 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran a TDIU rating. A subsequent rating decision increased the combined schedular rating for the Veteran's service connected disabilities to 100 percent, effective July 5, 2011; and from that date the matter of entitlement to a total rating based on individual unemployability is moot. The issue is characterized accordingly. FINDING OF FACT Prior to July 5, 2011, the Veteran's service-connected disabilities - diabetic nephropathy with hypertension and edema rated 60 percent, coronary artery disease rated 60 percent, diabetes mellitus rated 20 percent, degenerative changes of the lumbar spine rated 10 percent, and erectile dysfunction rating 0 percent were rated 70 percent combined, but were not shown to be of such nature and severity as to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The schedular requirements for a TDIU rating were met prior to July 5, 2001; but a TDIU rating prior to that date was not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An October 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment and Social Security Administration (SSA) records have been secured. The RO arranged for VA examinations in July 2009 and February 2012. 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. Legal Criteria, Factual Background, and 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). 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. 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). 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). Prior to July 5, 2011, the Veteran's service-connected disabilities included: diabetic nephropathy with hypertension and edema, rated 60 percent; coronary artery disease, rated 60 percent; diabetes mellitus, rated 20 percent; degenerative changes of the lumbar spine, rated 10 percent; and erectile dysfunction rated 0 percent. The combined rating was 90 percent, and the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) were clearly met. To establish entitlement to a TDIU rating, however, it must also be shown that, due to the service-connected disabilities alone, the Veteran was unable to obtain or maintain any substantially gainful employment. The preponderance of the evidence is against such a finding. In a VA Form 8940 filed in October 2009, the Veteran reported that he last worked full-time in August 2008, as a mechanic. He indicated that he did not seek employment because he believed that no employer would hire him due to his service-connected disabilities. He indicated that he completed high school and one year of college. On July 2009 examination, the examiner noted the Veteran was a retired airline mechanic and as such his diabetes, erectile dysfunction, heart conditions, and low back pain did not affect his employment. The examiner noted the Veteran could participate in the following activities, fairly heavy gardening, vacuuming, bed making, raking leaves, etc. Also, that he can walk at least 3MPH, paint interior and exterior surfaces, and lift occasionally. With regard to his spine disability, the examiner noted effects on his usual daily activities, included severe impact on chores; moderate impact on shopping, exercise, recreation, traveling; no impact on feeding, bathing, dressing, toileting, and grooming; and he was prevented from playing sports. During the course of the appeal, VA secured the Veteran's SSA records, which included a November 2008 disability determination that found the Veteran was disabled effective August 28, 2008 due to obesity and a sleep disorder. Treatment records considered in conjunction with the SSA determination showed that as of August 2008, the Veteran's family physician believed he was a hazard at his position due his sleep apnea, because he fell asleep at his computer. His family physician opined that as of August 2008, he was no longer able to be employed due to the severity of his condition. In a notice of disagreement (NOD) received in December 2009, the Veteran's representative contends that he was unemployable due to the combined effect of his service-connected disabilities. On February 2012 VA examination, following a review of the claims file and physical examination of the Veteran, the examiner identified the following service-connected disabilities: diabetes, heart disease, hypertension, lumbar spine degenerative joint disease, erectile dysfunction, and bilateral diabetic peripheral neuropathy (service connected effective July 5, 2011; and therefore not relevant herein). The examiner commented regarding how the Veteran's employability was affected by each service-connected disability. Regarding diabetes, the examiner opined that because such disease was controlled by medication, it did not impact on the Veteran's capacity to work or impair function and specifically did not affect either sedentary or physically-active occupational functions. Regarding heart disease, the examiner opined that the Veteran must limit his activity to a level no more strenuous than brisk walk on level ground, and should not climb more than one flight of stairs; therefore heart disease prevented work that involved moderate or greater physical activity, but would not affect sedentary employment or an occupation or a position that involved only mild physical activity. The examiner noted the Veteran's hypertension was controlled with medication, and therefore did not impair function in either sedentary or physically-active occupations. Regarding lumbar spine degenerative joint disease, the examiner noted that physical examination showed a decreased range of motion of the lumbar spine with signs of pain during various movements. Additionally, the Veteran reported that approximately four days per week, he could not complete chores because of his low-back condition; this was especially true following periods of physical activity. Hence, the disability would prevent function at a physically-active occupation, but would not affect sedentary work. The examiner opined that the Veteran's service-connected erectile dysfunction did not cause occupational impairment. An April 2012 private physician treatment record noted that the physician discussed with the Veteran the need for him to exercise and lose weight following an episode of fatigue from exertion walking while on vacation. To establish entitlement to a TDIU rating the Veteran must show that due to service-connected disabilities alone (i.e., not considering the effects of age/non-service-connected disabilities), he is unable to engage in substantially gainful employment. While the record suggests that he indeed may be unemployable; the overall evidence attributes the unemployability to the Veteran's non-service-connected, and not his service-connected disabilities. SSA records list non-service-connected obesity and sleep apnea as the conditions contributing to the Veteran's inability to work.; no service-connected disabilities were identified by SSA as contributing to the Veteran's unemployability. Thus, he has not shown that his service-connected disabilities alone prevent him from obtaining and maintaining gainful employment. Additionally, the medical evidence of record does not support a finding that prior to July 5, 2011 the Veteran was demonstrably unable to obtain or maintain employment due to his service-connected disabilities alone (since then his service connected nephropathy has increased in severity and he has established service connection for diabetic neuropathy of the lower extremities . The July 2009 examination found that although the Veteran's daily activities were moderately to severely restricted by his lumbar spine disability, he could nonetheless maintain sedentary employment (and was able to participate in daily and recreational activities such as yard work and gardening, which each require significant physical exertion). Hence, the Board finds the medical evidence showed that the Veteran was physically able to engage in at least sedentary employment. The Veteran asserts he did not apply for employment, because he believed employers would not hire him due to his service-connected disabilities. However, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough [to substantiate a claim for TDIU]. See Van Hoose, 4 Vet. App. at 363. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question in a claim for a TDIU rating is whether the Veteran is rendered incapable of engaging in employment consistent with education and experience. The evidence discussed above clearly shows that the Veteran was able to maintain some level of physical activity, and was capable of sedentary employment. For the reasons stated above, the evidence does not support a finding that, prior to July 5, 2011, the Veteran was unemployable because of his service-connected disabilities, alone. Accordingly, the preponderance of the evidence is against his claim for TDIU. ORDER The appeal seeking entitlement to a TDIU rating prior to July 5, 2011 is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs