Citation Nr: 1333863 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-01 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter was last before the Board in March 2013, at which time it was remanded for further development. It has since been returned for additional appellate action. The Board notes that this appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected disabilities, singly or in combination, do not preclude him from obtaining or maintaining any form of substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to a TDIU. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in February 2006, prior to the initial adjudication of the claim. Although the Veteran was not provided complete notice with respect to the initial-disability-rating and effective-date elements of a service-connection claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that it has determined that entitlement to a TDIU is not warranted; therefore, there will be no disability rating or effective date. There is also no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. Service treatment records and post-service VA medical records have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. In sum, the duties to notify and assist have been satisfied, and the Board will accordingly address the merits of the claim. Legal Principles It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "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(a)(1), 4.15 (2013). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the purpose of determining whether a claimant has one disability rated at 60 percent or more, disabilities resulting from common etiology or one accident will be considered one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran's service-connected disabilities consist of adenocarcinoma of prostate, rated as 60 percent disabling; residuals of gunshot wound, muscle group II, rated as 20 percent disabling; pleural cavity injury, rated as 20 percent disabling; scars, multiple, rated as 10 percent disabling; bilateral tinnitus, rated as 10 percent disabling; fracture, ribs, rated as 0 percent disabling; high frequency hearing loss, rated as 0 percent disabling; scar, abdomen, rated as 0 percent disabling; and healed fracture, mandible, rated as 0 percent disabling. The combined rating for the service-connected disabilities is 80 percent. Therefore, the Veteran meets the minimum schedular criteria for a TDIU. In his formal claim for a TDIU submitted in March 2006, the Veteran indicated that he last worked in March 2004 as a police officer. He indicated that his prostate cancer was precluding him from gaining employment. The Board notes that in compliance with its August 2011 remand, the Veteran was afforded a general medical VA examination, as well as separate examinations for hypertension (a condition that is not service-connected), hearing loss, tinnitus, and prostate cancer. The examiner performing the VA examination for hypertension opined that his hypertension did not impact the Veteran's ability to work. The examiner performing the VA examination for prostate cancer indicated that other than needing to take frequent bathroom breaks, the prostate cancer would not impact the Veteran's ability to work. However, the audiologist performing the audiological examination stated that while the Veteran's tinnitus would not impact his ability to work, his hearing loss would have an impact on employment. Specifically, the examiner opined that the Veteran had difficulty understanding speech in noise, but that the hearing loss alone would not preclude employment. The examiner performing the VA general examination opined it was less likely than not that the Veteran's service-connected disabilities alone prevented him from maintaining substantially gainful employment. The examiner based her opinion on her review of the claims file, and explained that the necessary frequent bathroom breaks due to his prostate cancer would not preclude him from employment. Further, the examiner commented that the Veteran had been gainfully employed until his retirement in 2002. With respect to the impact on employment of the Veteran's other service connected disabilities, the examiner referred to muscle, scars, dental, and audiological examinations. The Board found the aforementioned opinions inadequate for adjudication purposes as under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. Moreover, the Board found that there was no evidence in the record of any current muscle, scars, and dental examinations. The Board remanded the case again in March 2013, and the Veteran was afforded 5 separate examinations covering his gunshot wound residuals, including scarring and muscle disability, bilateral hearing loss, tinnitus, adenocarcinoma of the prostate, status-post radical retropubic prostatectomy and pelvic lymphadenectomy, hypertension, erectile dysfunction, stress incontinence, allergic rhinitis and hyperlipidemia. Notably, service connection is not in effect for hypertension, allergic rhinitis or hyperlipidemia (a laboratory finding). As the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability, the Board again found the examinations inadequate for adjudication purposes. In response to the March 2013 remand, the Veteran was scheduled for a general medical VA examination, as well as separate VA examinations addressing his service-connected disabilities. The examiner conducting the hearing loss and tinnitus examinations opined that the Veteran's high frequency hearing loss did not preclude him from maintaining gainful employment due to his ability to understand conversations in a quiet environment and his report that his only hearing problem involved asking for repetitions some times; the Veteran did not state that his hearing loss precluded him from maintaining gainful sedentary and/or physical employment. The examiner's opinion in regards to tinnitus was the same. The examiner performing the dental and oral examination opined, in an addendum, that the Veteran's oral or dental condition did not impact his ability to work. The examiner conducting the scars examination opined that there was no indication for unemployability based on the examination. The examiner conducting the examination for muscle injuries opined that the Veteran did not have any limitations contributed to his muscle injuries or scars; the Veteran stated that he was able to perform his duties while employed without any limitations from these conditions. Finally, the examiner conducting the examination for shoulder and arm conditions opined that the Veteran had complete function of his shoulders. The examiner performing the VA general examination opined it was less likely than not that the Veteran's service-connected disabilities individually or in combination precluded him from securing and maintaining substantially gainful employment. The examiner explained that the necessary frequent bathroom breaks due to his prostate cancer would not preclude him from employment. The examiner stated that on review of his VA examinations, none of his service-connected conditions precluded employability. On review of the evidence above the Board cannot find that the Veteran's service-connected disabilities, alone, render him unable to obtain or maintain gainful employment. The record shows that the Veteran continues to demonstrate the capacity for sustained substantial gainful activity. The Board acknowledges consistent with the VA examinations, and the Veteran's complaints, that his service-connected disabilities present certain limitations. Nevertheless, no medical professional has opined that the Veteran's service-connected disabilities actually render him unable to obtain or maintain substantially gainful employment. For the reasons stated above the Board concludes the preponderance of the evidence establishes that the Veteran's service-connected disabilities are not sufficient by themselves to render him unable to obtain or maintain substantially gainful employment. Accordingly, this claim must be denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs