Citation Nr: 1332029 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 06-10 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from June 1980 to June 1984. He had additional service in the National Guard from January 1985 to December 2002. This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A video conference hearing was held in June 2007, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony (transcript) is associated with the claims folder. The Board remanded the Veteran's appeal in August 2011, September 2012, and April 2013. FINDINGS OF FACT 1. The Veteran is substantially employed. 2. The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of TDIU are not met. 38 U.S.C.A. §§1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in October 2011 as to the elements necessary to substantiate a claim for TDIU and the claim was subsequently readjudicated, most recently in an July 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Relevant to the duty to assist, the Veteran's service treatment records, post-service VA treatment records, private treatment records, and VA examination reports are of record. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's Virtual VA and the Veterans Benefits Management System (VBMS) claims file, noting that all records have been considered by the RO in the first instance. Significantly, the Board finds that there has been substantial compliance with the previous remand directives, and no further action is necessary in this regard. To that extent, that on most recent remand, the Board requested a VA opinion that addressed whether the Veteran's service-connected disabilities, singly or jointly, rendered him unable to secure or follow a substantially gainful occupation. The Board finds that there has been substantial compliance with this directive because both of the June 2013 VA examiners addressed each functional limitation related to the Veteran's service-connected disabilities and, at the end of the report, provided conclusions as to whether his disabilities precluded employment; both VA examiners found that his disabilities did not preclude employment. The Board finds the rationales provided to be clear and well-reasoned and from the rationales can determine whether the Veteran's service-connected disabilities render him unemployable. Thus, the Board finds that the opinions are responsive to the previous remand directives and provide a basis to decide the Veteran's claim. The Board also notes that the previous remand directed the RO to forward the claims file for review by the Director of Pension & Compensation Services in order to determine whether a TDIU was warranted on an extraschedular basis. However, as analyzed below, the Board finds that such is no longer necessary because of the newly received confirmation that the Veteran is substantially employed. The previous remand had requested that the Veteran provide such employment information as that information was unknown to the Board at the time. Thus, in light of the change of circumstance, as well as the probative June 2013 VA examination opinions as to whether the Veteran's service-connected disabilities rendered him unemployable, the Board finds that referral for extraschedular consideration is no longer necessary. For these reasons, the Board finds that there has been substantial compliance with the previous remands. Thus, the Board finds that VA has fully satisfied the duty to assist. Additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that his service-connected disabilities render him unemployable. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. Service connection is currently in effect for lumbar spine disc bulging at L4-L5 (20 percent disabling); cervical spine disorder, osteochondrosis with disc osteophyte complex at C4-5, and spondylitic bar at C5-6 (20 percent disabling); left knee anterior cruciate tear residuals (10 percent disabling); left ankle fracture residuals (10 percent disabling); tinnitus (10 percent disabling), and hearing loss (noncompensably disabling). The combined disability rating is 50 percent. Therefore, the minimum percentage requirements for a TDIU rating set forth in 38 C.F.R. § 4.16 (a) are not met. The remaining question before the Board, then, is whether he is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disability and thus entitled to referral for consideration of a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Notwithstanding the circumstances of not meeting the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Indeed, a total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability on an extraschedular basis. 38 C.F.R. § 4.16(b). In order to meet this standard, the record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In November 2012, the VA received the Veteran's formal claim for a TDIU on which it was stated that he was currently employed by the American Legion and self-employed, taking in an income of $31,000. Current VA treatment records dated as recently as February 2013 also confirm that the Veteran was currently employed in that same position. Under 38 C.F.R. § 4.16(a), the Veteran is entitled to TDIU even if he is marginally employed, if he is unable to secure or follow a substantial gainful occupation as a result of service-connected disabilities. See 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. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). However, in this case, the Veteran's income is well above the poverty threshold as described above and thus his employment cannot be described as marginal, but rather, substantial. He accordingly does not meet the baseline criteria for consideration of a TDIU, much less on an exceptional, or extraschedular, level. To that extent, the four TDIU VA examinations in this case only weigh against his claim. All four examiners determined that the Veteran's service-connected disabilities did not preclude sedentary employment. For instance, a November 2012 VA opinion concluded that that the Veteran was precluded from completing harsh physical labor due to significant degenerative disc disease of the cervical spine and lumbar spine, and small amount of degenerative disease of the left knee. His lumbar spine precluded his ability to lift more than 5 pounds and he could not push light weights for any considerable amount of time. His knee made it so that he could not walk long distances or stand for more than five minutes. He could sit if he changed his position every 15 minutes. His knee disability affected his gait and his ability to push or pull. He was limited in his ability to squat. His ankle disability did not have a disabling affect. However, sedentary employment was not ruled out by his disabilities. He could grasp things, reach overhead, and keyboard. A VA examiner in June 2013 came to the same conclusions. At that time, it was found that his cervical spine disability did not interfere with his ability to complete manual labor. However, his lumbar spine, his most disabling condition, prevented him from lifting more than five pounds or pushing something more than a grocery cart. His gait was uneven and he used a cane. He could not stand or squat for more than two minutes. But, he could grasp, grip, reach overhead, and keyboard despite his lumbar spine disability. His left knee disability made it difficult for him to climb or walk on difficult terrain. It made it difficult for him to lift, carry, push, or pull more than five pounds. His ankle disability did not cause significant disability. He was noted to be attending pain school to aid him in coping with his disabilities. In conclusion, when reviewing all of the Veteran's service-connected orthopedic disabilities, the examiner determined that sedentary employment was possible for the Veteran. His disabilities precluded manual labor activities only. With regard to his hearing loss and tinnitus, on November 2012 VA examination, the examiner determined that the Veteran's hearing loss and tinnitus did not preclude employment. For one, the Veteran had exaggerated his symptoms such that the tests were not reliable for rating purposes. Moreover, his hearing loss and tinnitus, generally, would not preclude employment especially in a manual or trade position. A VA examiner in May 2013 came to the same conclusion, stating that the more reliable audiological testing of record showed that the Veteran only had slight hearing loss, thus his hearing loss and tinnitus should not preclude employment. After review of the remainder of the record, the Board finds no opinion in support of the Veteran's claim. Although he does suffer from his service-connected disabilities, especially his lumbar spine disability, repeat VA opinions have determined that he is able to work in a sedentary position. For that matter, the evidence demonstrates that he is employed in a sedentary, skilled position, has been for a number of years, and generates an income that is considered to be more than marginal. Thus, in the absence of any evidence of unusual or exceptional circumstances beyond that that contemplated by the assigned scheduler disability evaluations, a referral for consideration of a TDIU on an extraschedular basis is not warranted, and the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER A TDIU is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs