Citation Nr: 1329154 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 03-31 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded this claim in April 2006, August 2007, and April 2008. In an August 2009 decision, the Board denied entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2011 memorandum decision, the Court vacated the Board's August 2009 decision and remanded the matter for further proceedings. In February 2012 and March 2013, the Board remanded the Veteran's claim for additional development. The case has again been returned to the Board for appellate review. The Board observes that the Veteran's January 2003 claim was for an increased rating for his right toe disability and temporary total disability benefits due to surgery on his right foot and a subsequent period of convalescence. The RO indicated that a statement from a physician that the Veteran would not be able to work for a period after the surgery triggered RO consideration of a claim of entitlement to TDIU in the May 2003 rating decision. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) in August 2003, sitting at the RO. The transcript of this hearing is associated with the claims file. FINDINGS OF FACT 1. Service connection is in effect for right foot third degree pes planus with claw toes post-operative and history of osteomyelitis with amputation of the right great toe, evaluated as 40 percent disabling and left foot third degree pes planus with claw toes post-operative, evaluated as 30 percent disabling. The combined disability rating is 60 percent. 2. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran is unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU due to service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in April 2006, August 2007, April 2008, February 2012, and March 2013. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of these remands was to obtain Vocational Rehabilitation records, employment records, employment income records, information regarding any private treatment records, to issue corrective VCAA notice, to schedule examinations, and to schedule a hearing. The record reflects that Vocational Rehabilitation records and outstanding treatment records were obtained, complete VCAA notice was issued in May 2008, VA examinations were performed in August 2006 and May 2013, and the Veteran was scheduled for a hearing, although he did not attend. In February 2012, the Veteran was requested to provide employment records, to include records of employment income. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the all prior remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Court, in the consolidated appeal of Dingess/Hartman v. Nicholson, held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. 19 Vet. App. 473 (2006). VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with VCAA notification letters in May 2006 and May 2008 for his TDIU claim, after the initial denial in May 2003. The May 2006 and May 2008 letters advised the Veteran of the criteria he needed to meet for entitlement to TDIU, of his and VA's obligations in providing evidence for consideration. The letters also informed the Veteran of his and VA's obligations in providing evidence for consideration and of how to substantiate disability ratings and effective dates generally. With respect to the timeliness, the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that a statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, providing the Veteran with VCAA-compliant notice prior to readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, subsequent to the letters sent in May 2006 and May 2008, the Veteran was provided with multiple SSOC. Therefore, any deficiency of timing of notice was rectified by subsequent readjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. The Board notes that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge and/or DRO who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2003 DRO hearing, the hearing officer identified the issue and, in addition to testimony about the severity and symptoms of his service-connected disabilities and his work history, elicited testimony about the Veteran's Vocational Rehabilitation training and any outstanding treatment evidence. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with VA examinations. The Veteran's VA medical records, Vocational Rehabilitation records, and the reports of August 2006 and May 2013 VA examinations, and Social Security Administration (SSA) records were reviewed by both the AOJ and the Board in connection with adjudication of his claim. He has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports, they provided an opinion that was based on the evidence of record, including the Veteran's work and medical history and current findings. Nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file. Thus, the Board does not find any of the examinations to be inadequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and that additional effort to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered 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. "Substantially gainful employment" is not currently defined in VA regulations. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), 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. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. Service connection is in effect for right foot third degree pes planus with claw toes post-operative and history of osteomyelititis with amputation of the right great toe, evaluted as 40 percent disabling and left foot third degree pes planus with claw toes post-operative, evaluated as 30 percent disabling. The Board notes that these disabilities are of the bilateral lower extremities; therefore, they are treated as one disability for TDIU purposes, with a combined rating of 60 percent, which meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). In a TDIU application received in August 2003, the Veteran reported he had a GED, and had received training as an office clerk. However, the Board determines that the preponderance of the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. In the report of a VA examination of the Veteran in August 2006, it was noted that he had been working part-time as a parking lot attendant for the previous two months. The Veteran complained of difficulty standing and walking due to pain in both feet. He did not use any orthotics. He took Tylenol for pain. On physical examination, the examiner observed the Veteran did not appear to be in pain. It was noted that the Veteran's shoe wear pattern was normal. He had a cane to walk around. The examiner characterized the Veteran's pes planus as moderate in each foot, and found that it was not so severe as to preclude the Veteran from obtaining or maintaining gainful employment. On VA examination in May 2013, it was noted that the Veteran reported occupational history as a custodian, maintenance worker, janitor, mail clerk and parking attendant, on and off, from the late 1970's through 2010. He indicated that he had not worked since 2010. The Veteran complained of daily pain in the feet, more so on the right. He described the pain as 8 to 10, on a scale of 1 to 10. He reported that the pain increased with prolonged standing more than 10 minutes, and walking more than one block. The Veteran stated that he took about 8 tablets of extra strength Tylenol per day. He reported he had used a cane for the last 10 years due to feet, knee, and back problems, and used inserts in both shoes for the last several years. On physical examination, the Veteran was observed to not wear special shoes with built-in inserts. He had regular shoe inserts. The examiner described minimal limping and used a cane. The May 2013 VA examiner opined that the Veteran's disabilities of the right and left feet are not likely to prevent him from doing light sedentary work. In support of this opinion, the examiner pointed to the examination findings, as outlined above, which the Board notes show that the Veteran has pes planus of both feet without marked pronation and hammertoes, causing an inability to stand on toes and to walk heel to toe, but not to walk on heels. Additionally, the examiner noted that the Veteran reported pain, particularly in walking one block and with prolonged standing, and that he wears orthotic inserts, which work to relieve symptoms. The examiner also documented a minimal limp with regular use of a cane, but stated that the Veteran had disabilities of the back and knees that influenced these manifestations. In light of these symptoms, the examiner determined that the Veteran could do light sedentary-work related jobs. Moreover, records from SSA and VA Vocational Rehabilitation that describe the Veteran's employment history show that he has been capable of non-sedentary jobs without regard to his service-connected bilateral foot disabilities. It appears from the Vocational Rehabilitation records and documents from employers, as well as from the Veteran's reports in SSA records, that several of his positions were through an employment or training agency, namely Jewish Vocational Services (JVS). On one SSA form asking for job history, the Veteran reported that from 2000 to 2003, he worked 40 hours per week as an apartment maintenance technician, earning $10.00/hour. The Board notes a May 2003 letter from an employer that states that the Veteran was being let go as his Family and Medical leave had expired in April 2003. The next period of employment listed on the SSA form was from 2004 to November 16, 2007, when he worked purportedly 40 hours per week as a custodian/maintenance, earning $ 11.81/hour. Then, the Veteran indicated no employment from November 16, 2007 until 2010 at which point he worked in janitorial services for 24 hours per week at an hourly rate of $7.15 and then as a parking attendant for 30 hours per week, earning $9.70. Similar dates were reported in another section of that form asking for information about his work. However, on another SSA form asking for work history, the Veteran indicated that he was employed as a maintenance technician from November 2001 to April 2003, in janitorial training from August 2003 to October 2003, as a mail room clerk from December 2003 to June 2005, and as a parking attendant from December 2005 to November 16, 2007. In addition, VA Vocational Rehabilitation documents reflect that in September 2003, the Veteran entered a Janitorial Training program and that in January 2004, he was employed as a mail clerk in the IRS mailroom, and the August 2006 VA examination states that the Veteran was currently employed part-time as a parking attendant. A September 2007 employer memo shows that the Veteran was still employed as a parking attendant at that time. From this information, it appears that the Veteran's employment timeline is more likely as reported to SSA in the second instance discussed above, rather than in the first instance that detailed his hourly pay. Nevertheless, from this information, the Board is able to assess whether the Veteran has been at any time engaged in substantially gainful employment. The Board notes that no documentation in the claims file shows how many weeks per year the Veteran worked at a particular pay rate. The Veteran filed his claim in January 2003. The poverty threshold was $9,573 in 2003, and in 2010, the last date associated by the Veteran with any employment, it was $11,344. The Veteran's lowest paying job was purportedly his work in janitorial services for 24 hours per week at $7.15 per hour. The Board observes that, even assuming the Veteran worked 52 weeks a year, his income would not have exceeded the poverty threshold at any time during the appeal period. However, a January 2004 JVS placement report states that the position in the IRS mail room was for 40 hours per week, paying $9.95 per hour and providing medical benefits, sick leave, and vacation time. Vocational Rehabilitation counseling notes reflect that this position was described as full-time and permanent by JVS. In addition, a March 2004 counseling note reflects that a conversation with JVS revealed the Veteran's pay rate as $11.11. From the Veteran's reports and JVS documents it also appears that this position lasted for over a year, possibly over two years. A full-time permanent position paying $9.95 per hour yields income that well exceeds the $9,827 poverty threshold for 2004 and even the $11,344 poverty threshold in 2010. As such, the Veteran was employed substantially and gainfully for at least the time he was employed at the IRS mailroom. Thus, while some of the Veteran's employment has been marginal, he has been capable of substantially gainful employment during the appeal period. Moreover, regardless of whether the Veteran's employment was marginal or substantially gainful, the Board observes that his inability to maintain employment of any kind during the appeal period has not been due to his service-connected disabilities. Initially, the Board notes that the Veteran is in receipt of SSA benefits for his nonservice-connected back disability. However, VA is not bound by the findings of disability and/or unemployability made by other agencies, including the SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Moreover, the memos and letters from the Veteran's employers reveal that his employment difficulties stemmed from poor attendance, inability or unwillingness to follow procedures and policies, and rude and, at times, hostile behavior. A September 2003 Vocational Rehabilitation training report expresses reservations that work in janitorial services and building maintenance may be unsuitable for the Veteran due to his service-connected disabilities. However, the October 2003 Janitorial Skills Training Program Final Evaluation Report and Recommendations by JVS reflects concerns about the Veteran's work performance and attitude, but does not discuss any concerns about physical limitations. While on one occasion in May 2006, JVS documented that the Veteran indicated that he had missed work due to a broken toe, the Board observes that the concern about missing work was due to the fact that the Veteran had not informed the employer that he would not be at work that day. This same letter also notes that the Veteran had lost his position in the IRS mailroom for that reason, as well as documents belligerent behavior toward his current supervisor. Unexcused absences were noted in March 2005 by another employer. In September 2007, a JVS memo documented that as a parking attendant, the Veteran was unhelpful and used foul language when dealing with the public, a primary function of his job. A note on that memo, presumably by the Veteran, states that the allegation is not true. However, the veracity of the allegation aside, the Board observes that the neither that memo nor the other memo and letter suggested that the Veteran had physical limitations that impaired his ability to perform his job effectively. The Veteran has not submitted any competent opinion to contradict the above evidence. The criteria for entitlement to TDIU for compensation purposes is that the Veteran is unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities, without reference to nonservice-connected disabilities or other factors. The evidence does not demonstrate that the Veteran meets these criteria. As discussed, while many of the Veteran's positions would have required standing and walking, i.e., janitorial and maintenance work and mail clerk, his job performance and tenure were impacted by non-service connected factors, most notably his work ethic. The only physical disability associated with his inability to work has been his nonservice-connected back disability. While the Board acknowledges that the Veteran's service-connected disabilities may have been the reason he did not attend work on some occasions, they did not cause him to not follow work procedures and policies or behave inappropriately toward colleagues and the public. Thus, the evidence does not establish that the Veteran's service-connected disabilities alone, but considered in combination, prohibit him from engaging in substantially gainful employment consistent with his educational attainment and occupational history, and the claim of entitlement to TDIU is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement to TDIU. Therefore, his claim must be denied. ORDER Entitlement to TDIU due to service-connected disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs