Citation Nr: 1329671 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 06-21 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran had active service from March 1984 to July 1984 and June 1988 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Fort Harrison, Montana. This matter was previously before the Board in September 2011, September 2012, November 2012, and June 2013 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the prior remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 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). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By correspondence dated in October 2006 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, records from the Social Security Administration and private medical records. Additionally, the Veteran was provided several proper VA examinations in response to his claim, most recently in March 2012 with addendum medical opinions issued in December 2012 and July 2013. The Board also finds that VA has complied with the September 2011, September 2012, November 2012, and June 2013 remand orders of the Board. See D'Aries, supra. In response to the Board's remands, the RO adjudicated the issue of entitlement to TDIU and obtained addendum medical opinions from the March 2012 VA examiner addressing the Veteran's specific contentions regarding the claim for TDIU. The case was then readjudicated in a July 2012 Supplemental Statement of the Case. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. The current claim for TDIU arises from the Veteran's previous appeal for an increased disability rating for service-connected migraine headaches. Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). Total disability ratings for compensation will be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "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 the 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 also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: 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. 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 unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. Service connection is in effect for a chronic headache disorder, rated as 30 percent disabling; and residuals of a fracture to the fifth metatarsal of the left foot, rated as noncompensable. His combined disability rating for compensation is 30 percent. Therefore, he does not satisfy the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), as he does not have two or more service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling. 38 C.F.R. § 4.16(a) (2013). Even though the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry in a claim for TDIU 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). In this case, although the record contains evidence that the Veteran is currently unemployable, it does not establish that his inability to maintain gainful employment is due solely to service-connected disabilities. Therefore, referring the claim to the Director for extra-schedular consideration is not warranted. On his November 2006 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he last worked full time in 2002 as a mechanic. He completed three years of high school, obtained his GED while in the Army, and received training as a forklift operator during active duty service. A January 2005 letter from the Veteran's former employer indicates that the Veteran's employment was terminated in December 2003 due to illness manifested by headaches, fatigue, and muscle pain. The record establishes that the Veteran is currently unemployable due to a combination of service-connected and non-service-connected disabilities. Records from the Denver and Fort Harrison VA Medical Centers document the Veteran's reports that he was unable to work due to bilateral non- service-connected shoulder disabilities. In February 2005 at the Denver orthopedic clinic, the Veteran stated that he was unable to elevate his arms above his head or tighten bolts with the right arm which prevented employment. Similarly, in March 2011, the Veteran stated that his shoulders bothered him the most of all his physical disabilities. The Veteran was also examined by the Social Security Administration in connection with a claim for benefits in February 2005. The Social Security Administration examiner concluded that symptoms associated with the Veteran's disabilities interfered with his ability to carry out gainful employment; however, the disabilities identified by the Social Security Administration examiner included non-service-connected anxiety, depression, and shoulder pain in addition to the Veteran's complaints of headaches. The record also contains several medical opinions from VA examiners weighing against the claim for TDIU. During a May 2004 VA examination, the Veteran reported that he was unemployable due to his service-connected disabilities, but the VA examiner noted that the Veteran was able to work until December 2003 when he underwent shoulder surgery. The intensity of the Veteran's headaches had also not changed in the preceding few years. The examiner concluded that it was less likely as not that the Veteran's service-connected disabilities rendered him unable to function in an occupational setting. Additionally, a VA examiner who reviewed the claims file and examined the Veteran in December 2005 found that the Veteran was disabled primarily due to his non-service-connected shoulder disabilities. A September 2010 VA examiner also found that the Veteran was unemployed due to both his headaches and shoulder conditions. These medical opinions all indicate that while the Veteran may manifest some occupational impairment due to his service-connected headaches, his non-service-connected shoulder disabilities are the primary source of his employment difficulties. The Veteran's most recent VA examination was conducted in March 2012. At that time, he reported migraine headaches that had been stable since 2004. The examiner noted that the Veteran's activities were limited during episodes of severe migraines, which occurred one to four times a year, but had no limitations due to his daily chronic headaches. During the periods of severe headaches, the Veteran was more likely than not to have difficulties with sedentary and non- sedentary employment activities, but as noted above, these episodes were only found to occur one to four times a year. With respect to the Veteran's average daily impairment, it was less likely than not that he would have difficulty performing any employment tasks, either sedentary or non- sedentary. The claims file was returned to the March 2012 VA examiner for addendum medical opinions in December 2012 and July 2013. After further review of the claims file, including the Veteran's October 2012 statement regarding the effect of his migraine medications on his ability to work, the VA examiner concluded that it was less likely as not that the Veteran's medications caused significant restriction to his sedentary and non-sedentary employment tasks. The only impairment due to medication was mild limitations with the operation of machinery and driving. In the July 2013 addendum opinion, the examiner described the specific side effects associated with the Veteran's medications, including fatigue, dizziness, and decreased concentration. However, as the Veteran consistently denied side effects of his medication while receiving VA treatment and did not disclose any problems with side effects during the March 2012 VA examination, the examiner's opinion regarding the effect of the Veteran's headaches on his employability was unchanged. The examiner also noted that there was no basis for an opinion regarding unemployability caused by the service- connected foot condition as there were no complaints or treatment associated with the disability. The competent medical evidence therefore establishes that the Veteran's current unemployability is due to a combination of his service-connected and non-service- connected disabilities, with the primary disability stemming from his bilateral shoulder condition. Although the March 2012 VA examiner found that the Veteran's severe migraine episodes would result in impairment to both sedentary and non-sedentary work tasks, these episodes only occurred a few times each year. The Veteran was not impaired in the course of his daily chronic headaches and experienced only mild limitations to operating machinery due to his headache medication. These findings are also supported by the December 2003 and January 2005 statements from the Veteran's former employers at Midway Auto, who describe the Veteran's difficulties with symptoms stemming from headaches and muscle pain in his arms, backs, and legs. The Board has considered the Veteran's statements regarding the effect of his service-connected headaches and left foot disability on his ability to obtain and maintain gainful employment. However, VA treatment records document statements from the Veteran associating his employment difficulties with non-service- connected bilateral shoulder conditions rather than headaches. Despite the Veteran's October 2012 contention that his headache medication renders him unemployable, he has also denied side effects stemming from his medication while receiving VA treatment and did not report any similar complaints during the many VA examinations provided during the claims period. The Veteran's termination from his position as a mechanic in December 2003 also coincides with surgery for a non-service-connected shoulder condition. The Veteran is competent to report the symptoms he experiences, such as severe headaches and their affect on his activities, but the Board finds that the objective medical evidence and the statements from the Veteran's employers are more probative regarding the effect of the Veteran's disabilities on his ability to obtain and maintain employment and the cause of his termination in December 2003. The Board, therefore, finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due solely to service-connected disabilities. Instead, the evidence of record establishes that he is unemployable due to a combination of service and non- service-connected conditions. Non-service-connected disabilities may not be considered in the determination of whether the Veteran warrants TDIU. 38 C.F.R. §§ 3.341, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the benefit-of-the-doubt rule is inapplicable and referring the claim to the Director for extra-schedular consideration is not warranted. As such, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra; 38 C.F.R. §§ 4.15, 4.16, 3.340, 3.341. ORDER Entitlement to TDIU is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs