Citation Nr: 1331356 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-30 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 2005 to June 2006. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (hereinafter VA) Regional Office in San Juan, the Commonwealth of Puerto Rico, (hereinafter RO). In August 2011 and January 2013, the Board remanded the claim for additional development and consideration. FINDINGS OF FACT 1. The Veteran service-connected disabilities are depressive disorder, rated at 30 percent disabling; lumbar spine disability, rated at 20 percent disabling; left knee disability, rated at 10 percent disabling; right fifth metacarpal bone fracture, rated at 10 percent disabling; hypertension, rated at 10 percent disabling; atypical chest pain, rated at 10 percent disabling; hypertensive retinopathy, rated at noncompensable; and gastritis, rated at noncompensable. These ratings combine to 60 percent. 2. The evidence of record does not indicate these service-connected disabilities are so severe as to preclude the Veteran from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for a TDIU, including warranting referral for extra-schedular consideration. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a July 2008 letter advised the Veteran of the evidence and information necessary to substantiate his claim of entitlement to a TDIU, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to these claims. The Veteran was also afforded VA examinations in April and May 2013 with respect to the issue of entitlement to a TDIU. The Board finds that such VA examinations and opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and physical examinations with diagnostic testing. The examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. Additionally, in obtaining the April and May 2013 VA examinations, the Board finds that there has been substantial compliance with the prior January 2013 remand directives such that 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). The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty under the VCAA. II. Entitlement to a TDIU The Veteran contends that he is unemployable as a result of his service-connected disabilities. For the reasons described below, the Board concludes that a TDIU is not warranted. A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. First, the Board notes that the Veteran does not meet the schedular requirement for a TDIU. The Veteran is service connected for depressive disorder, rated at 30 percent disabling; lumbar spine disability, rated at 20 percent disabling; left knee disability, rated at 10 percent disabling; right fifth metacarpal bone fracture, rated at 10 percent disabling; hypertension, rated at 10 percent disabling; atypical chest pain, rated at 10 percent disabling; hypertensive retinopathy, rated at noncompensable; and gastritis, rated at noncompensable. These ratings combine to 60 percent. So he does not have sufficient ratings to satisfy the threshold minimum requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU. Although the percentage requirements are not met, entitlement to benefits on an extraschedular basis may also be awarded when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran's background including 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 a veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). On his VA Form 21-8940, dated in June 2008, the Veteran stated he last worked in June 2006 and was employed by the United States Army. The report of a November 2009 VA examination also noted the Veteran was not employed. However, an April 2013 VA examiner reported that the Veteran was working in construction. Additional information regarding this employment is not provided in the claims file. The Veteran has undergone numerous VA examinations for his various disabilities, including a VA examination specific to his claim for a TDIU, and VA has obtained an opinion regarding his employability. In this regard, the November 2009 VA examination pertaining to the Veteran's left knee and low back reported that the Veteran is unable to perform any activity during flare-ups. The VA examiner also acknowledged moderate effects of these disabilities on the Veteran's daily activities, but a specific opinion regarding unemployability was not provided. The Veteran did report he was unemployed at the time of this examination. As a consequence of the Board's January 2013 remand, the Veteran was scheduled for additional VA examinations to obtain an opinion on employability. In April 2013, the VA examiner determined that the Veteran's hypertensive retinopathy has not in any way limited his ability to perform his trade efficiently. Concerning the right fifth metacarpal bone fracture, the examiner also noted that the residual of this disability does not impose any restrictions and does not impact the Veteran's ability to work. As for the Veteran's depressive disorder, the examiner stated there was occupational and social impairment due to mild or transient symptoms which decrease work efficiency. The examiner also stated that the Veteran is "doing just fine," and that he is not unemployable due to a mental condition. The examiner went on to note there is not a complete limitation on the type of employment since there is no evidence of recurrent crisis, hospitalization, pharmacotherapy failure. Finally, the examiner concluded the Veteran's mental condition was stable. Concerning the Veteran's left knee and lumbar spine disabilities, the April 2013 VA examiner determined that the Veteran is employable but can only work at a sedentary job where he cannot climb stairs or ladders repetitively, cannot lift more than 10 pounds, and cannot bend at the waist repetitively. In May 2013, additional opinions regarding hypertension and gastritis were obtained. The VA examiner determined that these medical conditions were stable and under current treatment. Therefore, they do not cause any significant impairment that can limit the Veteran's ability to sustain any type of employment. There is no other medical evidence regarding the effect that the Veteran's service-connected disabilities have on his employment outlook. The Veteran underwent additional VA examinations in November 2009 for his hypertension and chest claims; a Gulf War Examination in October 2011; and, an eye examination in December 2011, with a clarifying opinion dated in October 2012. However, none of these VA examinations addressed whether the Veteran is able to obtain and maintain substantially gainful employment as a result of his service connected disabilities. Further, the VA treatment records that have been obtained and associated with the Veteran's claims file detail his ongoing treatment for his various service-connected disabilities. These records do not, however, contain any opinions the effect that these disabilities have renders the Veteran unable to secure or follow a substantially gainful occupation. The Veteran is competent to state what effects he believes his disabilities have on his employment, and the Board finds his statements to be credible. However, the Board finds these statements to be outweighed by the findings of the April and May VA examiners. Again, these VA examiners have offered opinions regarding the Veteran's employability, and each opinion has concluded that the Veteran is still able to secure or follow a substantially gainful occupation, even with his limitations. Given these findings, the Board finds that these opinions outweigh that offered by the Veteran himself. Thus, the record establishes that the Veteran is not precluded from securing and maintaining substantially gainful employment due to service-connected disabilities. As noted above, consideration in a TDIU claim may not be given to a claimant's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). While the Veteran's overall medical condition could preclude work requiring physical-type labor, all forms of substantially gainful employment are not precluded, such as a sedentary-type job. As the Court has stated, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Id. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. And in this particular instance, the VA examiners have indicated the Veteran is not precluded or restricted from all forms of employment that may be considered substantially gainful. Accordingly, TDIU is not warranted. Because the record does not reflect that the Veteran is unemployable due solely to his service-connected disability ratings, the preponderance of the evidence is against his claim for TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs