Citation Nr: 1328983	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  05-05 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel

INTRODUCTION

The Veteran had active service from October 1953 to October 1955.

This matter came before the Board of Veterans'Appeals (Board) on appeal from a January 2008 rating decision which denied a TDIU. 

In July 2008, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO.  A hearing transcript was prepared and incorporated into the record.  At the hearing, the Veteran submitted a Motion to Advance on the Docket.  In October 2008, the Board granted the Veteran's motion.  In November 2008, the Board remanded the Veteran's appeal to the RO for additional action.

In April 2010, January 2011, and December 2011, the Board noted that its prior Remand instructions had not been complied with and remanded the Veteran's appeal to the RO for such action.

In November 2012 and June 2013, the Board remanded the Veteran's appeal to the RO for additional action.  The actions requested by the Board remands have been accomplished and the case returned to the Board.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to 'insure [the RO's] compliance' with the terms of its remand orders).  The Board has reviewed both the physical claims files and the 'Virtual VA' file so as to insure a total review of the evidence.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran is service connected for tuberculosis, rated 30 percent disabling; cysts of the right kidney, rated 30 percent disabling; and scars, rated as noncompensably disabling.  The combined evaluation for compensation is 50 percent. 

2.  The Veteran does not meet the schedular criteria for a TDIU.

3.  The evidence of record weighs against finding that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected disabilities.


CONCLUSION OF LAW

The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

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, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.

A letter dated in September 2007 discussed the evidence necessary to support a claim for TDIU.  The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence.  This letter also discussed the manner in which VA determines disability ratings and effective dates.

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  Post-service VA treatment records have been associated with the claims file.  All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012).  In this case, the Board notes that the Veteran was provided a VA examination in October 2007 specifically for the issue of entitlement to TDIU, and multiple additional VA examinations to evaluation his service-connected disorders, the most recent in February 2013.  The October 2007 examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and provided sufficient evidence to evaluate the Veteran's employability.  The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his service-connected disorders since he was last examined in February 2013.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has declined to present testimony before a Veterans Law Judge.  Therefore, the duties to notify and assist have been met.

Legal Criteria and Analysis

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, 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.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected 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).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war.

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

In this case, the Board notes that the Veteran is service connected for tuberculosis, rated 30 percent disabling; cysts of the right kidney, rated 30 percent disabling; and right kidney and scars, rated as noncompensable (0 percent).  As such, his combined rating is 50 percent.  Therefore, his service-connected disabilities do not meet the percentage rating standards for TDIU.  38 C.F.R. § 4.16(a).

The RO considered whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b).  See Bowling, 15 Vet. App. at 6.  

Here, the Board has also considered whether extraschedular evaluation is warranted, and finds that it is not.  In this case, the Veteran asserts that he is unable to work because of his service-connected kidney disorders.  However, having reviewed the record, the Board finds that the preponderance of the evidence weighs against finding that he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities.

In this case, the Board finds the October 2007 and February 2013 VA examination opinions to be the most persuasive evidence regarding whether the Veteran is unemployable due solely to service-connected conditions.  During the October 2007 VA examination, the Veteran reported he had not worked since 1995 when he had an operation to replace his left knee.  He did well with the left knee after his rehabilitation and recovery until he had a stroke in 2002 that involved the pontine area of the brain.  The examiner found the Veteran could not stand for very long and he also has frequency of urination which requires him to have to go the bathroom frequently which would interfere with his ability to do his previous occupation as a barber.  After a physical examination, the examiner determined that the Veteran's occupational functioning was affected by his musculoskeletal problems.  The examiner noted that the Veteran is unemployable from his non-service connected disabilities of the musculoskeletal system and complications from the cerebrovascular problems.  During a February 2013 VA examination, the examiner opined that the Veteran's service-connected kidney disorders do not impact his ability to work.  

Lay persons can attest to factual matters of which they had first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994).  Here, the Veteran described the limitations caused by his service-connected disabilities, and the Board acknowledges that his statement in that regard is competent and of some probative value.  However, the Board also notes that the complexity of his medical history and variety of health problems create some limitation as to his ability to distinguish to what degree those limitations are a result of his service-connected disabilities and to what degree those limitations are attributable to his nonservice-connected medical conditions such as urinary frequency that also impacts his ability to work.  

In short, upon review of all relevant evidence of record, the Board finds the October 2007 and February 2013 VA examination reports to be the most probative medical evidence of record on the matter.  Though the Veteran has reported that he is unemployable due to service-connected disorders, during the October 2007 VA examination, the Veteran stated he was unemployable due to difficulties with mobility and urinary frequency which are not noted to be related to his service-connected tuberculosis and kidney residuals. 

In summary, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment.  Based on the evidence in the claims file, the Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 50 percent rating which is currently assigned.  Loss of industrial capacity is the principal factor in assigning schedular disability ratings.  See 38 C.F.R. §§ 3.321(a), 4.1.

Indeed, 38 C.F.R. § 4.1 specifically states: '[g]enerally, the degrees of disability specified 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.' See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  


As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to total disability based on individual unemployability (TDIU) due to service connected disabilities is denied.




____________________________________________
J. K. BARONE 
Acting Veterans Law Judge, Board of Veterans'Appeals



Department of Veterans Affairs