Citation Nr: 1328957	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  06-12 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office
in Roanoke, Virginia


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from October 1978 to June 1983.

This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Veteran testified in support of this claim during a hearing held in Washington, D.C. before the undersigned Veterans Law Judge in November 2008.

In November 2011, the Board continued the 20 percent initial rating assigned the Veteran's right knee disability and remanded the claim for a TDIU, a component of the higher initial rating claim, to the RO via the Appeals Management Center (AMC) in Washington, D.C.  

VA's paperless claims processing system (Virtual VA) includes additional pertinent documents, which the RO considered in the first instance in a supplemental statement of the case (SSOC) issued in April 2013.


FINDING OF FACT

The Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment.


CONCLUSION OF LAW

The criteria for entitlement to a TDIU due to service-connected disabilities are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

A.  Notice

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

When a claim arises in the context of a claimant trying to establish entitlement to service connection for a claimed disability, the VCAA notice must apprise him of all five elements of the claim, which are:  (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

However, if service connection is granted and, in response, the Veteran appeals a "downstream" issue such as the rating or effective date assigned the disability, VA is not required to provide additional VCAA notice concerning the downstream element(s) of the claim.  In such a case, the initial intended purpose of the notice has been served (the claim as it arose in its initial context has been granted) and the issuance of a statement of the case (SOC) is appropriate if the disagreement is not resolved.  See Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  

Moreover, in a case such as this, in which the claim for a TDIU based on service-connected disabilities arose derivatively from a claim for a higher initial rating for a left knee disability, the notice described in 38 U.S.C.A. § 5103(a) need not be claimant specific or advise a claimant that, to substantiate his claim, he must submit medical or lay evidence showing the effect any worsening in his disability has on his employment and daily life.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Rather, VA need only provide generic notice advising him of the evidentiary and legal criteria for establishing his entitlement to greater compensation.  Id.

Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim in an SOC or SSOC.  In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how the error is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO in this case provided the Veteran VCAA notice on his claim by way of letter dated in September 2012.  This letter is untimely, having been sent after, rather than before, the initial adjudication of this claim.  The RO cured this timing defect, however, by since readjudicating the claim in an April 2013 SSOC.  Mayfield v. Nicholson, 499 F.3d at 1317.   

This letter satisfies the content requirements noted above.  Therein, the RO informed the Veteran of the evidence needed to substantiate his claim and identified the type of evidence that would best do so.  The RO explained VA's and the Veteran's respective responsibilities with regard to obtaining supporting evidence.  It included all necessary information on effective dates in the event a TDIU is granted.  The RO indicated that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified its source(s), but that it is his responsibility to ensure VA's receipt of any pertinent evidence. 

As well, in this letter and a Memorandum dated March 2008, the RO identified the evidence it had received in support of the Veteran's appeal, the evidence it had requested, but not yet received, and the evidence that was unavailable and could not be obtained.  It specifically indicated that it had tried to obtain the Veteran's June 2, 1983 to September 28, 2005 records from the VA Medical Center in Hampton, Virginia, but that its efforts in this regard were unsuccessful.  

VA provided the Veteran further notice during his November 2008 hearing and in an August 2012 remand.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), a Veterans Law Judge (VLJ) who chairs a hearing must satisfy two duties: (1) fully explaining the issue; and 
(2) suggesting the submission of evidence that may have been overlooked.  During the hearing, the VLJ in this case facilitated discussion of the severity of the Veteran's right knee disability, including that it had necessitated surgery and was interfering with his job.  See transcript at 12-24.  He identified evidence that had been outstanding prior to the hearing, some of which the Veteran submitted after testifying.  He also identified other outstanding evidence that needed to be obtained in support of the Veteran's claim and acknowledged that the Veteran had a medical appointment scheduled, the records of which would be pertinent to this claim.  

The VLJ did not fully discuss the nature of a TDIU claim during the hearing as that is when the Veteran first raised the claim.  Rather, the VLJ discussed the nature of the higher initial rating claim, of which the TDIU claim is a component.  In any event, any failure to do so is harmless.  The rule of prejudicial error applies in assessing any deficiency with respect to a hearing officer's duties under section 3.103(c) and requires a case by case determination as to whether the error in question is harmless.  Bryant, 23 Vet. App. at 498-99.  In this case, any such error is harmless, not prejudicial to the Veteran, and does not affect the essential fairness of the adjudication of this claim.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993).  

Following the hearing, in a remand, the Board elaborated on the type of documents still needed to substantiate his claim, including a formal application for a TDIU.  The Board also took action to ensure that the Veteran would be fully informed of the nature of his claim by instructing the RO to send the Veteran VCAA notice on the claim.  

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notice.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions or 38 C.F.R. § 3.103(c)(2). 


B.  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

The RO in this case satisfied its duty to assist the Veteran in the development of his claim by trying to secure and associate with the claims file all documents he identified as being potentially pertinent to his claim, including his service and 
post-service treatment records and employment information.  As well, the RO afforded the Veteran a VA examination, during which an examiner discussed the effect of the Veteran's service-connected disabilities on his employability.  

When VA provides a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, neither the Veteran nor his representative asserts there are any other outstanding records that need to be obtained in support of these claims or that the examination report is inadequate.

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file and on Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran has submitted or which VA has obtained 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 and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

The Veteran has not submitted a formal claim of entitlement to a TDIU, but raised such a claim during his November 2008 hearing as a component of his claim for a higher initial rating for a right knee disability.  On that date, he testified that, as a result of his knee, he was getting ready to retire as he could not really do his job.  During the course of this appeal, he has not specifically asserted that his service-connected disabilities have rendered him unemployable.

A total disability evaluation may be assigned where the schedular evaluation is less than total (i.e., less than 100 percent) when the disabled person is unable to 
secure or follow a substantially gainful occupation as a result of service-connected disability or 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.  Disabilities resulting from common etiology or single accident, or affecting a single bodily system or both upper or lower extremities, will be considered as one disability for the above purposes of determining whether the Veteran has sufficient rating.  38 C.F.R. § 4.16(a) (2012).

The Veteran fails to satisfy the percentage requirements of § 4.16(a) because, although he has two service-connected disabilities, neither is rated at least 40-percent disabling.  He is service connected for patellofemoral syndrome with retropatellar spur, right knee, with surgical scar, rated 20 percent disabling, and patellofemoral syndrome with retropatellar spur, left knee, rated 10 percent disabling.  A combined rating of 30 percent is in effect.

When a claimant does not meet the percentage requirements of § 4.16(a) for consideration of a TDIU, he still may establish entitlement to this benefit on an extraschedular basis under the alternative provisions of § 4.16(b) if it is shown he is unemployable on account of service-connected disability or disabilities.  In this circumstance, however, the Board would be precluded from assigning an extraschedular TDIU in the first instance, having instead to remand the claim to the RO for referral to the Director of VA's Compensation and Pension Service for his special consideration.  In such a case, the rating board is to include in its submission a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue.  38 C.F.R. § 4.16(b) (2012).

While the regulations do not define "substantially gainful occupation", VA adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the similar term of "substantially gainful employment" 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."  See also Faust v. West, 13 Vet. App. 342 (2000) (defining "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 the veteran's earned annual income....)

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States 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. 

Id.  

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.

A Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough.  A high rating in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Id.

That said, requiring a Veteran to prove that he is 100 percent or totally unemployable is different than requiring proof that he cannot obtain and maintain substantially gainful employment.  The use of the word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability.  A requirement that a Veteran prove 100 percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

The Veteran's occupational background and educational attainment are not known in this case as he never actually filed a claim for a TDIU in the form of a VA Form 21-8940 containing such information or otherwise.  Regardless, a referral in this case is unnecessary as the evidence is clear that the Veteran does not meet the alternative criteria for a TDIU, even by his own admission.  During the course of this appeal, the Veteran submitted employment information showing that he is still working as a firefighter, a position he first accepted in September 1984.  In addition, recently, during VA outpatient treatment visits, he reported that he was a firefighter.  Although VA Forms 21-4192 (Request For Employment Information In Connection With Claim For Disability Benefits) show that the Veteran lost a substantial amount of time at work (225.17 hours) during the year preceding December 2011 due to disability, this lost time did not result in his dismissal or a decision to retire, as contemplated earlier.  This is so even though, according to the Veteran, his employer has not made any concessions by reason of his disability.

The Veteran's need to take off of work due to disability (assumed to refer to his knees) is factored into the schedular ratings assigned those disabilities.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Moreover, the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) than for purposes of a TDIU claim under 38 C.F.R. 
§ 4.16.  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008) ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.").

In December 2012 during a VA examination, an examiner discussed the Veteran's employability in light of his service-connected right and left knee disabilities.  He noted that the Veteran's knee disabilities limited his ability to bend, stoop and stand for a prolonged period of time and precluded physical or heavy manual labor, but was suitable for sedentary desk or computer work.  Neither the Veteran nor his representative has since claimed that the Veteran is no longer working and unable to obtain the type of employment the examiner found suitable from a medical perspective.  

There is no doubt the Veteran is impaired as a result of his right and left knee disabilities.  But in assigning him schedular ratings for these disabilities, VA is acknowledging that his impairment makes it difficult to obtain and keep employment.  See again Van Hoose and 38 C.F.R. § 4.1.  At this point, however, the impairment does not interfere completely with his ability to obtain and retain substantially gainful employment.  If in the future the impairment becomes that severe, he can and indeed should, on his own initiative, file a claim for a TDIU.  The Board may not, however, award the Veteran this benefit simply because his unemployability may one day become a reality.  

In the absence of competent and credible evidence, medical or lay, establishing that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment, the Board concludes that a preponderance of the evidence is against this claim for a TDIU.  In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, this doctrine is not for application.  38 C.F.R. § 4.3.


ORDER

A TDIU due to service-connected disabilities is denied.


____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs