Citation Nr: 1334172 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 05-06 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to September 1990. The claim for TDIU at issue in this decision arises from a formal January 2010 claim for TDIU. That claim was merged, as an inferred claim, with a perfected appeal for an increased rating for a service-connected left knee disability. The claim for an increased rating for left knee disability was already on appeal to the Board of Veterans' Appeals (Board) from an August 2004 rating decision issued by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) which denied an increased evaluation in excess of 20 percent for left knee disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. However, in Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), the Court held that VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. The inferred appeal for TDIU was Remanded by the Board in October 2010 and July 2012 Board decisions. FINDINGS OF FACT 1. The Veteran's combined disability evaluation is currently 50 percent, based on a 20 percent rating for limitation of extension of the left knee, a 20 percent evaluation for anterior cruciate ligament deficiency of the left knee, a 10 percent evaluation for limitation of flexion of the left knee, a 10 percent evaluation for gastric ulcers, and a 10 percent evaluation for duodenal ulcers. 2. During the period from 2004 to 2010, the Veteran worked as a teacher, in social work, in an accounting and budgeting position, and as a program management analyst. 3. The medical evidence establishes that the Veteran's service-connected disabilities do not preclude 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, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran has received numerous communications describing the evidence required to substantiate a claim for TDIU. Following the Veteran's formal claim for TDIU benefits in January 2010, the Board's October 2010 Decision and Remand discussed the evidence required to substantiate the claim. The Appeals Managment Center (AMC) issued a letter in late October 2010 which advised the Veteran of the criteria for TDIU and the types of evidence required to substantiate a claim for TDIU. The October 2010 letter advised the Veteran of the evidence needed to establish a disability rating, as well as notice of the criteria for assigning an effective date if the claim were to be granted. With that 2010 letter, the AMC satisfied the notice requirements with respect to the TDIU claim. Additional information was provided by the AMC in a December 2010 letter. Further discussion of the claim for TDIU was provided in a December 2011 supplemental statement of the case (SSOC). The Board's July 2012 Remand again discussed the evidence required, including the criteria for referral for extraschedular review if the Veteran were unable to obtain and maintain gainful employment. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, neither the Veteran nor her representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that no defect in the timing or content of notice to the Veteran is apparent from the record. The Veteran's communications demonstrate that she received notice regarding relevant evidence. The Board finds that notice in compliance with the VCAA has been provided. Duty to Assist VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the claimant to obtain service medical records, if needed, and to obtain pertinent treatment records and provide an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are included with the claims file as are identified VA and non-VA health records. Neither the Veteran nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Several VA examinations were conducted during the pendency of the appeals with which the TDIU was merged or the claim from which the appeal of the TDIU was inferred. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report of a January 2011 examination was more than adequate in addressing the effects of the Veteran's gastric ulcers on her employability. However, the opinion carried limited probative value with respect to her left knee as its findings were incongruous. The report of the June 2013 VA examination rectified that and provided a much more definitive opinion. That opinion also involved a physical examination of the Veteran, an interview, and rationale for its conclusions. Thus, taken together, the Board finds that the opinions of record are adequate and sufficient to answer the issues/questions on appeal. An additional opinion addressing the Veteran's disabilities together is not need. In October 2007, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) regarding three claims that are no longer under review. There was no perfected appeal of a claim for TDIU. The record did not raise a claim that the Veteran was unemployable, as the clinical records disclosed that the Veteran was employed at that time. There was no duty to discuss a claim for TDIU or the evidence required to substantiate a claim for TDIU. See 38 C.F.R. § 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Facts and Analysis VA regulations provide that when a Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran is currently service-connected for left knee disability and for gastric ulcer and duodenal ulcer disabilities. A 20 percent evaluation is in effect for anterior cruciate ligament disability. In addition, the Veteran has a 20 percent evaluation for limitation of extension, and a 10 percent evaluation for limitation of left knee flexion. A 10 percent evaluation for gastric ulcers has been assigned from April 2004, and a 10 percent evaluation for duodenal ulcers has been assigned from July 2010. The combined rating for the disabilities, calculated under 38 C.F.R. § 4.25, is 53 percent (20 + 20 = 36, + 10 = 42, +10 = 48, + 10 = 53). A combined rating is rounded to the nearest degree divisible by 10 percent, which results in a 50 percent rating in this case. In other words, the Veteran does not have a single disability rated at 60 percent or higher. It is true that the Veteran's left knee disability ratings, considered together, exceed 40 percent. However, even with a 40 percent rating for the left knee the Veteran's combined rating for all service-connected disabilities does not result in a total disability rating of 70 percent or higher. The Veteran does not meet the minimum requirements necessary for a grant of TDIU benefits on a schedular basis under 38 C.F.R. § 4.16(a). Therefore, the Board has considered whether entitlement to the benefit on an extraschedular basis, under 38 C.F.R. § 4.16(b), may be referred to the Director of the Compensation and Pension Service. The Board notes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is authorized where schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. No claim for an increased rating for any service-connected disability is before the Board in this appeal, as the claims for increased evaluation underlying this appeal or raised during the pendency of this appeal have been resolved, including by the Board's July 2012 decision. Therefore, consideration under 38 C.F.R. § 3.321(b) is not applicable to this appeal. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. See VAOPGCPREC 6-96. The Board itself cannot authorize an extraschedular award of TDIU in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only deal with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination as to whether an award of TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326 (1991). On VA examination in July 2004, the Veteran reported that she was employed as a teacher. She stated that her occupation was affected by her left knee because she was required to do a lot of standing, and she had to deal with aggressive children and her knee would get injured when she had to restrain them. She stated that she was not going to return to her teaching job because of her knee condition. In August 2004, a statement was received from the Veteran's teaching assistant, which indicated that she was aware of the pain the Veteran sustained due to her knee condition. She related that she assisted the Veteran in her classroom and that some days the Veteran was unable to stand to pass out assignments. The Veteran underwent a VA examination in October 2005. She related that her knee was unstable and that this had caused her to fall four times in the past year. She reported that she worked in accounting and billing at a VA Medical Center. VA clinical records dated in 2006 and in May 2007 reflect that the Veteran continued to have the same voicemail extension at work. At her October 2007 hearing before the Board, the Veteran did not testify directly as to whether or not she was employed, but she did testify that she had a specially-ordered chair with lumbar support. The record reflects that the Veteran's employer obtained a chair with special lumbar support, so the Veteran's testimony establishes that she continued to be employed. The Veteran stated that her occupation as a social worker was affected because she was unable to ambulate for long periods because of her left knee pain and she was not able to "get comfortable" in order to concentrate on tasks at hand because of her pain. She also missed days of work, she reported. The examiner who conducted the January 2008 VA examination opined that he could not comfortably say that the Veteran should not be able to work normally. Following the Board's October 2008 remand, the Veteran underwent a VA examination in March 2009. She stated that she had not worked for approximately a year because of a combination of wanting to go back to school and because it was difficult for her to sit, stand, or walk at work for any period of time. She stated that she was able to maintain her activities of daily living, but her husband had to sometimes put her shoes on for her. She was unable to participate in any prolonged walking or running activities with her children. In December 2009, the Veteran resigned from employment as a Management and Program Analyst with the Centers for Disease Control. The Veteran stated, in her resignation letter, that her medical conditions, described as "sciatica and arthritis," had worsened due to her pregnancy and required her to terminate her employment. The Veteran submitted a statement in January 2010 which was accepted as a claim for TDIU. Based on VA examination conducted in January 2011, an examiner that her service-connected ulcer disabilities could be controlled with medication and should not preclude her from obtaining and maintaining employment. The opinion addressing the effects of the left knee was less definitive. The examiner indicated that the Veteran's subjective reports of left knee pain precluded employment, but that the objective findings did not support that conclusion. The examiner emphasized that the subjective symptoms were far too severe when compared to the findings shown on X-ray and MRI. VA outpatient treatment records disclose that the Veteran did not seek VA outpatient treatment in 2010 and 2011, other than VA examinations. In March 2012, the Veteran sought treatment for acute right knee pain. At that time, she reported that a medication she obtained from a co-worker had helped her pain. The treatment note does not reflect the Veteran's occupation. An additional VA examination was conducted in March 2013. The examiner concluded that objective findings on radiologic examination of the Veteran's left knee were inconsistent with the observed range of motion limitations and the Veteran's symptoms of left knee disability. The reviewer suggested that specialty examination be conducted. Another examination of the Veteran's left knee was conducted in June 2013. The examiner found normal strength and stability in the left knee. Radiologic examination, including magnetic resonance imaging (MRI) disclosed no degenerative changes and no abnormalities; there was a small joint effusion. The Veteran had flexion to 140 degrees and extension to 0 degrees without evidence of painful motion. The examiner concluded that the service-connected left knee disability would not affect the Veteran's ability to engage in gainful employment. As noted above, VA regulations authorize an award of TDIU under 38 C.F.R. § 4.16(b) only if a Veteran is unable to secure and follow substantially gainful employment because of service-connected disabilities. The 2013 VA examination report is contrary to a finding that the Veteran is unable to secure and follow substantially gainful employment because of service-connected disabilities. The examiner very clearly indicated that the Veteran would be able to work. The unfavorable findings of the 2013 VA examination are consistent with the evidence that the Veteran was employed in various jobs from 2004 through December 2009, just before the Veteran submitted the claim at issue. When the Veteran resigned from employment in December 2009, she herself wrote a statement indicating that her medical conditions as a whole, not limited to her service-connected disabilities, were complicating her pregnancy, and that the complicated pregnancy required that she resign. In particular, the Veteran cited flare-up of sciatica as a reasons she was unable to work. The Veteran has not been granted service connection for sciatica. The December 2009 resignation letter provided by the Veteran is unfavorable to a finding that service-connected disabilities required termination of her employment. The report of the June 2013 VA examination is also unfavorable to the claim for TDIU on an extraschedular basis, since the report reflects that the severity of left knee disability has decreased during the pendency of this appeal. Additionally, the 2011 examination report establishes that the occupational impairment due to ulcers is minimal or can be controlled with use of medication. The Veteran has not provided evidence which leads to a different conclusion or which is favorable to her claim. It is true that the 2011 examiner stated that the subjective symptoms of the Veteran's knee disorder precluded employment. However, as discussed, the examiner also stated that the subjective symptoms were far too severe in light of the objective evidence (X-ray and MRI studies). The Board interprets this statement to mean that the Veteran was exaggerating her symptoms. She displayed similar behavior at her March 2013 examination. The special June 2013 examination further supported the notion that earlier subjective complaints should be discounted. The Veteran has not provided any evidence that she has been unsuccessful in obtaining or maintaining employment during the pendency of this appeal. Rather, the records reflect that the Veteran has referenced that she is employed as recently as March 2012, although the references to employment do not reflect the type of employment or the income from employment. The medical evidence is wholly unfavorable to a finding that the Veteran's service-connected disabilities preclude her from working in any of the fields - teaching, accounting, and social work - in which she was most recently employed. Moreover, the Veteran has reported, during the pendency of this appeal, that she returned "to school" and obtained additional educational preparation. This evidence establishes that service-connected disabilities have not precluded the Veteran from engaging in work-like activities. The evidence also establishes that the Veteran has secured gainful activity during the pendency of this appeal. If the Veteran has not been able to secure or follow gainful activity during some portion of the pendency of this appeal, the Veteran has not identified the period of unemployment or the reason for the unemployability or submitted or identified evidence of unemployability. The RO determined that the record established that the Veteran was not unable to secure gainful employment. The Board agrees with the RO's determination. The record establishes that the Veteran's service-connected disabilities do not preclude her from obtaining or maintaining gainful employment consistent with her education and vocational attainment. The Veteran does not meet the criteria for TDIU on a schedular basis, and does not meet the criteria for referral to the Director, C&P service, for consideration of extraschedular entitlement to TDIU. The appeal for TDIU is denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs