Citation Nr: 1330697 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-30 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to present testimony before a Veterans Law Judge at the RO in August 2012, but he did not report for that proceeding. He has not requested that the hearing be rescheduled or provided good cause. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (2012). A review of the Veteran's virtual VA claims files shows that they contain pertinent evidence not associated with his paper claims file. This evidence was reviewed by the RO prior to issuing the August 2013 supplemental statement of the case and by the Board prior to this adjudication. Thus, there is no prejudice in proceeding with a decision. The Veteran's claim was previously before the Board and remanded in February 2013. As will be explained in further detail below, there was compliance with the remand directives, and the Board may proceed with this appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO did provide the appellant with notice in May 2009, prior to the initial decision on the claim in September 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for entitlement to TDIU and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. As previously noted, the Board remanded the case for further development in February 2013. In compliance with the Board's remand directives, all outstanding VA medical records were obtained and associated with the Veteran's virtual VA claims file. In addition, the Veteran's claims file was forwarded to a VA examiner, who provided an August 2013 medical opinion with regard to employability, as was requested by the Board in the remand. Thereafter, the Veteran's claim was readjudicated. As such, all of the remand directives were complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded VA examinations in June 2013, July 2013, and August 2013 in connection with his claim for TDIU. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations and opinions, when taken together are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination, and they fully address the criteria that are relevant to making a determination in this case. There is no objective evidence indicating that there has been a material change in the severity of any of the Veteran's service-connected disabilities since he was last examined in June 2013 and July 2013. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and Analysis For VA purposes, total disability exists when there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist when earned annual income exceeds the poverty threshold, on a facts found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. In this case, the Veteran is service-connected for lumbosacral strain associated with patellofemoral syndrome of the left knee, postoperative (rated 20 percent); patellofemoral syndrome of the left knee, postoperative (rated 20 percent); medial epicodylitis of the left elbow (rated 10 percent); status post fracture of the left wrist (rated 10 percent); left ankle sprain associated with patellofemoral syndrome of the left knee, postoperative (rated 10 percent); tinnitus (rated 10 percent); internal derangement with persistent joint effusion and patellofemoral pain syndrome of the right knee associated with patellofemoral syndrome of the left knee, postoperative (rated 10 percent); right knee instability associated with patellofemoral syndrome of the left knee, postoperative (rated 10 percent); and gastritis (rated 0 percent). His combined rating is 60 percent from July 16, 2000; 70 percent from July 13, 2004; 60 percent from October 1, 2008; and 70 percent from July 7, 2010. The Veteran filed his claim for TDIU in May 2009. The Board notes that there are written statements from the Veteran dated prior to May 2009 in which he asserts that his service-connected disabilities adversely affect his employment. However, he does not allege or suggest that they prevent him from obtaining or sustaining employment until he submitted the aforementioned written statement in May 2009. Therefore, this is the date of his claim. In considering eligibility for any increased rating, including a total rating due to unemployability caused by service-connected disability, the relevant time period begins up to one year prior to filing the claim. 38 U.S.C.A. § 5110(b)(2). This time period is relevant in this case because the Veteran has not had a 60 percent rating for any single disability, and his combined rating has been less than 70 percent for a portion of the appeal period that began in May 2008. While diseases resulting from common etiology will be considered as one disability for purposes of one 60 percent disability or one 40 percent disability in combination, 38 C.F.R. § 4.16(a), the Veteran does not meet the schedular requirements for the period from October 1, 2008, to July 6, 2010. Specifically, while the Veteran's lumbosacral strain, patellofemoral syndrome of the left knee, left ankle sprain, internal derangement of the right knee, and instability of the right knee have a common etiology and, together, combine as a rating in excess of 40 percent, the combined rating of all disabilities did not equal 70 percent during this time period. Prior to October 1, 2008, and beginning on July 7, 2010, the Veteran's disabilities met the schedular criteria, as he had disabilities of a common etiology that were rated at least 40 percent combined and had a total rating of at least 70 percent. Regardless of whether the Veteran met the threshold standards in 38 C.F.R. § 4.16(a) throughout the appeal period, however, the Board must consider whether his service-connected disabilities prevent him from securing and following substantially gainful employment during this time period. Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities will be rated totally disabled, and rating boards are required to submit cases of such veterans who do not meet the percentage standards of 38 C.F.R. § 4.16(a) to the Director of Compensation and Pension Service (Director), for extraschedular consideration. While the Board does not have the authority to initially assign a total rating due to unemployability caused by service-connected disability on an extraschedular basis, it may remand the claim for referral to the Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 9 (2001). The Board must therefore consider in this case whether there is a plausible basis for concluding that the Veteran was unable to secure and follow a gainful occupation at any point during the appeal period beginning in May 2008. For the following reasons, the Board finds that the preponderance of the evidence is against such a conclusion. The evidence of record shows that the Veteran is currently employed full-time and has been employed full-time at the same job since at least March 2006. He works for the Texas Department of Transportation as a laboratory technician. VA outpatient treatment records dated as recently as June 2013 and August 2013 show that the Veteran continued to work full-time in this position, which included some driving. The Board notes that the fact that the Veteran is currently working does not end its inquiry. It is, however, a relevant fact that the Veteran has been working full-time for at least the past seven years in what the record reflects is not marginal employment under 38 C.F.R. § 4.16. On his October 2010 VA Form 21-8940, the Veteran reported that his total income for the past twelve months was $19,683.00, which is substantially more than the amount established as the poverty threshold for one person. According to the U.S. Census Bureau's Housing and Household Economics Statistics Division, the poverty threshold for one person under 65 years of age was $11,344 in 2010. Furthermore, there is no evidence of record, either from the Veteran or some other source, that even suggests that the Veteran's employment is marginal, to include suggestions that it is in a protected environment. As noted above, the Veteran works for the Texas Department of Transportation, and there is no suggestion by the Veteran or by the record that he is protected in that employment. In addition, the following evidence reflects that the Veteran's service-connected disabilities alone did not otherwise preclude him from following a substantially gainful occupation during the appeal period. In August 2010, the Veteran underwent a VA examination related to his knees. The examiner indicated that, despite his pain and problems with his knees, he remained independent in his usual daily activities and was enduring his occupation functions, which involved driving, walking, lifting, and stooping. In October 2010, the Veteran provided the RO with information regarding his employment and education history. He had been working for the Texas Department of Transportation since August 2004. This was full-time employment, although he had lost four months in 2010 due to his disabilities. The Veteran also noted that he had attended two years of college and earned an associate's degree in 2004. VA outpatient treatment records dated beginning in October 2012 show that the Veteran, in addition to maintaining full-time employment, was also attending school full time to earn his bachelor's degree in engineering. In June 2013, the Veteran underwent VA examinations specific to all of his service-connected disabilities other than tinnitus. The examiners who evaluated him for his gastritis, left wrist, knees, elbow, spine, and left ankle indicated that the conditions did not impact his ability to work. It was noted that the Veteran wore a knee brace while he worked. Significantly, the examiner opined that the Veteran's service-connected disabilities did not render him unable to secure and maintain substantially gainful employment. He was currently working. His service-connected disabilities caused the limitation of no prolonged standing or walking and no more than 30 minutes total of combined standing or walking per hour. In July 2013, the Veteran underwent VA examination for his tinnitus. The examiner pointed out that the aggravation of tinnitus symptoms is known to be reduced when an individual is occupied with a task, as would be expected in most occupations. Therefore, tinnitus alone should not render the Veteran unemployable for VA purposes. In August 2013, VA obtained an opinion from a VA physician regarding the Veteran's employability. The physician opined that it was less likely than not that the Veteran's currently rated, service-connected disabilities warrant a total disability based on an individual unemployability. The Veteran had proven his ability to maintain physical employment in the past and shows minor physical disabilities to preclude a sedentary position in the future. It was also her opinion that the Veteran would require minimal supervision, sitting, and/or standing restrictions. The Board acknowledges that the evidence certainly shows that the Veteran's service-connected disabilities impacted him employment. He frequently experienced pain in his spine and joints due to his job. He also underwent knee surgeries on a number of occasions and missed work accordingly. The October 2010 form returned to VA by the Veteran's employer also shows that he was currently out of work on unpaid leave for the prior two weeks. He had used all of his sick leave at that point. The evidence of record also shows that the Veteran missed work in April 2008, May 2009, June 2010, May 2011, and June 2011 due to his service-connected disabilities. While this impact on the Veteran's employment is significant, it is contemplated in the 70 percent combined rating he is currently assigned. Despite these flare-ups and surgeries, the Veteran has maintained full-time employment in the same occupation for over seven years and is, in fact, currently pursuing a bachelor's degree at the same time. The preponderance of the above evidence reflects that the Veteran's service-connected disabilities alone have not precluded him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational experience. The Veteran contends that his service-connected disabilities have made it difficult for him to perform certain tasks at work and have caused him to miss significant time from work. The evidence supports this contention. The evidence also reflects, however, that his service-connected disabilities have not prevented him from being gainfully employed for the entire time during the appeal period in his current full-time job. Furthermore, the Veteran's work and education history show that he is qualified for his current employment and would have the ability to obtain other employment if necessary. A total rating due to unemployability caused by service-connected disability is not warranted for difficulty working or loss of significant time from work, as these are contemplated by the ratings assigned for specific disabilities. See 38 C.F.R. § 4.1 ("Generally, 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"). Rather, preclusion from substantially gainful employment is required, and the above evidence reflects a lack of such preclusion. The opinions of the VA examiners dated in June 2013, July 2013, and August 2013, taken together, clearly and specifically address the effect of each of the Veteran's service-connected disabilities on his employment, provide an opinion on the basis of all service-connected disabilities, and give a thorough rationale and explanation supported by a review of the evidence of record. As such, these opinions are adequate and entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran's statements. Lay witnesses are competent to report symptoms, but their statements must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's statements indicate the difficulty that he has faced at work, the restrictions he experiences, and his belief, stated in May 2009, that he would not be able to work much longer. However, these statements do not reflect that he has been precluded from obtaining or maintaining work and therefore do not warrant a different result. Notably, while the Veteran believed in May 2009 that he could not continue to work, the evidence shows that he continues to work full-time at the same job and, in fact, is now also pursuing a bachelor's degree. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to TDIU throughout the appeal period, whether on a schedular or extraschedular basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to TDIU is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs