Citation Nr: 1333684 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-11 974 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION This matter initially came before the Board of Veterans' Appeals (Board) on appeal, in part, from a January 2006 decision by the RO which denied the benefit sought on appeal. A hearing before a member of the Board was held at the RO in October 2010. The Board remanded the appeal for additional development in July 2011 and March 2013. This appeal was processed entirely using the VA Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. The information contained in these systems is not identical, and all evidence contained therein has been considered by the RO. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include posttraumatic stress disorder (PTSD), rated 30 percent disabling; diabetes mellitus and right ankle scars, each rated 20 percent disabling; and capsulitis of the right ankle, low back strain and hepatitis C, each rated 10 percent disabling. The combined rating is 70 percent. 2. The Veteran has one year of college education, and work experience as a supervisor at a furniture manufacturing plant; the Veteran last worked in 2005. 3. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126; 38 C.F.R. §§ 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The timing and content notification obligations in this case were accomplished by way of a letter from the RO to the Veteran dated in December 2005, which contained the generic notice information required for the TDIU claim. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. The Veteran's service treatment records (STRs) and all identified medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and testified at a hearing before a member of the Board at the RO in February 2011. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. As noted above, the Veteran testified a hearing before a member of the Board in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, provided evidence supportive of his claim. As such, the Board finds that, consistent with Bryant, the Board member complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. To the extent any hearing deficiencies exist, the Board finds that they were cured with further Board development of the claim. As noted in the March 2013 Remand, the Board member who conducted the October 2010 hearing is no longer at the Board. The Veteran was notified of this and was afforded an opportunity for another hearing, but advised the Board in February 2013 that he did not want another hearing. Finally, the case has been subject to a prior Board remand. The AMC associated all VA treatment records with the claims folder and scheduled the Veteran for a comprehensive VA examination to determine whether his service connected disabilities precluded employment. The Board finds the July 2013 VA examinations were thorough and adequate upon which to base a decision with regard to the issue on appeal. The examiners interviewed and examined the Veteran, elicited a history of his symptoms and residual problems, and provided the information necessary to evaluate his claim for TDIU under the applicable rating criteria. Given the foregoing, it is concluded that there has been substantial compliance with the Board's remand instructions. Under the circumstances, the Board finds that the AMC has substantially complied with the March 2013 remand instructions, and that no further action is necessary in this regard. Routen v. West, 142 F.3d 1434, (Fed. Cir 1998); see also, D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue addressed in this decision is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Under the applicable criteria, a total disability rating for compensation based upon individual unemployability 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 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 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities 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 shall not be considered substantially gainful employment. Id. However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 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. However, in order to be granted TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities and believes that he should be awarded TDIU. The Veteran asserts that he can not stand for any prolonged period of time due to his right foot disability, and that his capacity for bending and lifting is severely limited due to his back disability which requires a prescription of hydrocodone and a back brace. He has testified to having incapacitating episodes of back pain "all the time." He uses a walker at home. The Veteran reports that he has difficulty getting along with people and does not believe that he could find or maintain gainful employment because of his PTSD. He further asserts that his hepatitis disability renders him incapable of employment due to the need for bi-monthly medical treatment. The Veteran's service-connected disabilities include PTSD, rated 30 percent disabling; diabetes mellitus and right ankle scars, each rated 20 percent disabling; and capsulitis of the right ankle, low back strain and hepatitis C; each rated 10 percent disabling. The combined rating is 70 percent. In this case, the Veteran does not meet the schedular criteria for a total disability rating based on individual unemployability. That is, while the Veteran has a combined rating of 70 percent, he does not have a single disability rated 40 percent disabling. Therefore, he does not meet the threshold requirements for TDIU. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes this case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, 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). The Veteran was examined by VA at least three times during the pendency of this appeal, including in April 2007, February 2009 and July 2013. The Veteran's complaints and the clinical and diagnostic findings were not significantly different on all of the examinations, and showed that he had good range of motion of the lumbosacral spine and right foot, that his hepatitis and diabetes were well controlled with medication, and that his PTSD did not cause more than mild to moderate social and industrial impairment. When examined by VA for PTSD in April 2007, the Veteran reported that his typical day involved working in his yard, doing a few household chores, reading and going shopping with his wife. He said that he was a supervisor for a furniture manufacturer for 11 years, but quit in 2005, due to conflicts with his manager. He was married for 28 years and lived with his wife, stepdaughter and teenage grand-daughter. On mental status examination, the Veteran was cooperative, alert and well oriented. He was not in acute distress and his affect was appropriate and unrestricted. His mood appeared normal and his thought processes were relevant and coherent. There was no evidence of a psychosis or any suicidal or homicidal ideations. He related his experiences, problems and symptoms in an appropriate and cooperative manner. The diagnosis was PTSD, and the Global Assessment of Functioning (GAF) score was 60. On VA PTSD examination in February 2009, the Veteran reported that he stopped working in 2005 because of his hepatitis and arthritis, and denied that his unemployment was related to his PTSD. He reported nightmares and intrusive thoughts frequently, difficulty falling or staying asleep and difficulty concentrating. The Veteran reported that he enjoyed doing yard work, reading, household chores, and said that he kept to himself, primarily because of legal problems related to his prior conviction for child molestation. (See April 2007 VA examination). On mental status examination, the Veteran was cooperative, attentive and casually dressed. He was well oriented, his psychomotor activity was unremarkable and his speech was spontaneous. His affect was appropriate, his mood good and his thought processes and content were unremarkable. There was no evidence of delusions, hallucinations or suicidal or homicidal ideations. There were obsessive or ritualistic behaviors, episodes of violence, inappropriate behavior or panic attacks, and his memory was intact. The GAF score was 58. The examiner commented that the Veteran had moderate symptoms and moderate difficulty in social functioning, but that his PTSD symptoms were not such that they would prevent him from maintaining gainful employment. VA examination of the Veteran's right foot in April 2009, showed three well healed, tender scars about the ankle with pain on palpation of the anterior ankle joint capsule. There was some painful limitation of motion, but no joint effusion. The assessment included residuals of injury to the right ankle with post traumatic capsulitis, joint stiffness and symptomatic scars. The examiner commented that the residuals of the Veteran's right foot disability were mild to moderate in severity. VA examination of the Veteran's back in April 2009, showed forward flexion to 90 degrees with pain from 70 to 90 degrees. Extension was from zero to 20 degrees with pain at the end range of motion. Right and left lateral flexion and rotation was from zero to 30 degrees in all modalities, with pain at the end range of motion. On repetitive flexion showed a decrease from zero to 80 degrees with increase pain. Straight leg raising was positive on the right at 10 degrees and at 20 degrees on the left. There was no evidence of spasms. In March 2013, the Board remanded the appeal for a VA examination to determine the cumulative effect of the Veteran's service-connected disabilities on his ability for gainful employment. When examined by VA in July 2013, the examiners indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and the current findings on examination. The Veteran's diabetes mellitus was well controlled with medication and diet, alone. The Veteran's hepatitis was manifested by intermittent fatigue and arthralgia without incapacitating episodes. There was no evidence of cirrhosis or any other liver abnormalities or complications. The examiner opined that the Veteran's hepatitis did not impact on his ability to work. On VA back examination in July 2013, the Veteran denied any flare-ups of back symptoms. Forward flexion was from zero to 90 degrees with pain beginning at 45 degrees. Extension, right and left lateral flexion and rotation were to 30 degrees with pain at the end range of motion. There was no additional range of motion loss on repetitive movement. There was no muscle atrophy, guarding or spasms, and strength was 5/5 throughout the lower extremities. Sensation was normal and straight leg raising was negative. There was some mild radiculopathy in the left lower extremity but none on the right. There was no evidence of intervertebral disc syndrome (IVDS) or additional neurological symptoms and no bowel or bladder impairment. The examiner opined that the Veteran's low back disability did not have any impact on his ability to work. The Veteran's symptoms and clinical findings on VA PTSD examination in July 2013, were not significantly different from the two prior VA examinations and showed that he had anxiety, irritability, and difficulty falling asleep and concentrating. The examiner opined that the Veteran's PTSD symptoms were consistent with occupational and social impairment due to mild to transient symptoms which decreased work efficiency and ability to perform occupation tasks only during periods of significant stress, or; symptoms controlled by continuous medication. VA examination of the Veteran's right foot in July 2013, showed a tender, well-healed, 2-cm linear scar on the dorsum of the foot with normal strength and good range of motion in the right ankle. The scar was not deep or unstable and did not cause any functional impairment. Plantar flexion was to 45 degrees with pain beginning at 30 degrees, and dorsiflexion was to 20 degrees with pain beginning at 20 degrees. There was no additional range of motion loss or functional impairment on repetitive motion. There was no evidence of nonunion or malunion of the tarsal or metatarsal bones, weak foot or other pertinent abnormalities of the foot. The examiner opined that it was not likely that the Veteran's right foot injury with scars and right ankle capsulitis would prevent him from obtaining and maintaining gainful employment. The examiner commented that while the Veteran would have difficulty working in jobs requiring prolonged standing due to his tender scar, he was still capable of sedentary employment. The records also include the Veteran's VA clinic records showing routine monitoring of his health problems. His spinal stenosis was treated with medications such as hydrocodone, Flexeril and Neurontin and, in 2011, he was offered morphine as a means of treatment. There is no opinion in these records that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. In this case, the evidence shows that while the Veteran reports chronic right foot and low back pain on prolonged walking or standing, he has good range of motion in the lower back and right foot, and no significant functional impairment due to the service-connected disabilities. His diabetes is well-controlled with diet and medication and he has no functional impairment associated with his hepatitis. Likewise, the Veteran's PTSD does not cause more than an occasional decrease in work efficiency with intermittent ability to perform occupational tasks. There are significant side-effects reported concerning his medications, and the frequency of his medical visits do not appear to be onerous or excessive. While it is evident that the Veteran's mobility is somewhat limited due to his right foot and low back disabilities, and he has functional impairments with flare-ups and need for use of medications, his service-connected disabilities are not shown, either individually or cumulatively to preclude all forms of sedentary employment. The various VA examiners who evaluated the Veteran for the specific purpose of determining the affect of his service-connected disabilities on his employability, all concluded that gainful, sedentary employment was feasible. In this regard, the Board notes that although he was asked to provide VA with information concerning his employment history on at least three occasions during this appeal, including most recently in the March 2013 Remand, the Veteran has not fulfilled his duty to assist VA in providing information within his control and has reported only that he was a supervisor at a furniture manufacturer for 11 years, before quitting in 2005. He also reported that he had one year of college education. Overall, the medical evidence and opinion of record establishes that substantially gainful employment in a sedentary occupation is realistically within the physical and mental capabilities of the Veteran consistent with his educational and vocational background. In so holding, the Board has considered the Veteran's lay statements and the reported difficulties that he has due to his service-connected disabilities. The Veteran's general report of symptoms is credible and consistent with the evidentiary record. However, with regard to the severity of those symptoms and resultant occupational effects, the Board places greater probative weight to the clinical findings of VA clinicians and the opinions of the VA examiners who have greater training and expertise than the Veteran in evaluating the occupational impairment resulting from his physical and mental disabilities. The Board does not dispute that the Veteran experiences some industrial impairment due to his service-connected disabilities. However, the degree of impairment is adequately reflected by the combined schedular rating of 70 percent. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record fails to show that the Veteran's service-connected disabilities, either singularly or in combination, are so severely disabling as to render him unable to secure or follow substantially gainful employment. The available evidence of record tends to show that the Veteran is able to perform sedentary type of work and he has a past history of performing sedentary type of work in a supervisory capacity. Accordingly, the Board finds that the evidence does not demonstrate that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim for TDIU. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs