Citation Nr: 1333236 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-01 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from April 1961 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the Veteran and his spouse testified at a Video Conference hearing before the undersigned Veterans Law Judge. FINDING OF FACT The most probative evidence indicates that the Veteran's service-connected disabilities do not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a May 2010 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post service treatment records, VA examination reports and the Veteran's Social Security Administration records. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, the Veteran volunteered his treatment history and symptomatology, the Veteran's wife testified as to the impact of his conditions, and the Veteran's Law Judge (VLJ) asked questions relevant to whether the Veteran met the criteria for a TDIU. In addition, the VLJ discussed the need to obtain the temporary claims folder from the RO, so that the Veteran's record would be complete. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As an initial matter, the Board notes that the Veteran's bilateral lower extremities disabilities have been awarded compensation under the provisions of 38 U.S.C.A. § 1151 based on VA medical treatment. For simplicity sake, the Board will refer to these disabilities as "service connected." See 38 U.S.C.A. § 1151 (compensation under this provision will be paid in the same manner as if such disability were service connected). The Veteran contends that his service-connected left lower extremity and right lower extremity disabilities render him unemployable. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities of one or both lower extremities (including the bilateral factor) will be considered as one disability. 38 C.F.R. §§ 3.340, 4.16(a)(1). In determining whether an appellant is entitled to a TDIU, consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, service connection has been established for peripheral neuropathy of the left and right lower extremities as secondary to hernia surgery, each evaluated as 40 percent disabling, and for erectile dysfunction, evaluated as noncompensable. The combined disability rating for all service connected disabilities is 70 percent. 38 C.F.R. § 4.25, 4.26 (2013). Thus, the Veteran meets the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a) (2013). The Veteran is also receiving special monthly compensation for the loss of use of a creative organ. In his March 2010 claim for TDIU, the Veteran indicated that he could not work. The Board notes that he is currently unemployed. A June 2006 decision shows that the Veteran was found to be disabled by the Social Security Administration, and awarded Social Security disability benefits. He was found to have bilateral chronic radiculopathy and degenerative disc disease. The Social Security Administration noted there was a lack of jobs in which the Veteran could perform due his disability. The Veteran has previously been employed as a truck driver and as an auto mechanics teacher. Subsequently, the Veteran was employed as greeter at Wal-Mart until February 2009, but resigned due to a medical condition and not being able to perform duties. The Veteran was afforded a VA examination for his service-connected lower extremities in April 2010. A May 2010 rating decision re-evaluated the Veteran's service-connected lower extremities disabilities, granting increases from 20 percent to 40 percent for each lower extremity for a combined rating of 70 percent. The Veteran was afforded a VA examination in July 2010 for this TDIU claim. The Veteran reported that he had bilateral numbness and weakness in his lower extremities. The examiner, a physician who is Board Certified in Occupational Medicine, diagnosed the Veteran with idiopathic sciatic neuropathy. He reported that the Veteran had decreased mobility and lack of stamina, and that there were effects on the Veteran's daily activities, such as falling and limited mobility. He noted that the Veteran was receiving medication for the bilateral sciatalgia which began shortly after the Veteran's hernia surgery. The examiner reported that the Veteran's gait was normal and that the rest of the Veteran's motor, sensory and vascular indicators appeared normal. The examiner discussed the difference between total and partial impairment. He stated that "total means the disability has affected the whole person while partial indicates a portion of the whole is involved." He continued that the "two types can be expressed as a function of whether or not any further medical improvement is expected." The examiner opined, after a careful review of the Veteran's history and past examination, that the Veteran could still engage in gainful employment. He determined that the Veteran "can be classified as impaired but not disabled." The examiner also opined that because a disability is a function of ability to perform a particular gainful activity, and given a set of prior training, skills and educational level, that there were various employment opportunities that the Veteran could seize. The examiner noted that the Veteran was taking pain medication, but also noted that the Veteran ambulates unaided and drives. The examiner stated the Veteran's sciatalgia was not a contraindication of commercial truck driving. At the October 2011 Video Conference hearing, the Veteran stated that he could not feel his legs. He indicated that he can only walk short distances and that he has a VA issued scooter. He stated that he was previously employed as a truck driver and an auto mechanics teacher. He noted that he would not be able to work as an auto mechanic now, as he would not be able to crawl underneath the car or lean over the fender. He stated that he cannot climb in and out of a truck and would not be able to shift gears in a truck. The Veteran also indicated that he was previously employed at Wal-Mart, but that he was not able to stand for his whole shift. He said that he can stand for about 15 to 20 minutes before his legs bother him. He indicated that if he sits for a long period of time, then his legs bother him when he stands up. The Veteran's wife testified that the Veteran does not have any control and has fallen before. VA outpatient treatment records show complaints and treatment for lower extremity pain and numbness and that the Veteran receives methadone for chronic pain. VA outpatient treatment records also reveal that the Veteran is being treated for nonservice connected chronic obstructive pulmonary disease. After a review of the entire record, the Board concludes that the evidence does not establish that the Veteran is unable, due solely to his service-connected disabilities, to obtain and maintain substantially gainful employment. The only medical opinion of record on whether the Veteran's service connected disabilities, without regard to nonservice connected disabilities and his age, render him unemployable is the opinion of the July 2010 VA examiner. The Board notes this examiner is a physician specializing in occupational medicine. This specialist, after reviewing the claims file and examining the Veteran, determined that his service connected disabilities do not render the Veteran unemployable, and that there are various employment opportunities that the Veteran could do. As this opinion was based on the record and included a detailed explanation for the conclusion reached, the Board finds this opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent medical opinion to the contrary. The Veteran has offered his own assertions regarding the effects and level of impairment he believes his service-connected disabilities have on his employment. The Board finds him credible to testify regarding such observable symptomatology. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, the Board finds that the opinion of the VA examiner is of greater probative value as to whether the Veteran's service connected disabilities, without regard to age or nonservice connected disabilities, render him unemployable. The Board is sympathetic to the Veteran's assertions regarding the impact of his left and right lower extremity disabilities have on his usual daily activities. Those problems, however, are compensated by his current schedular ratings for those disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while his service-connected disabilities may cause some economic inadaptability, that also is taken into account in the assigned ratings and the combined 70 percent rating, which contemplates significant impairment in earning capacity. In this case, the preponderance of the evidence is against a finding of individual unemployability based solely on the service-connected disabilities. 38 C.F.R. § 4.1 (2013). No competent medical opinion shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs