Citation Nr: 1334201 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 00-17 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The appellant is a Veteran who served on active duty from April 1975 to June 1976. He had prior periods of active duty or active duty for training from June 1972 to October 1972 and from June 16, 1973, to June 30, 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision by the Ft. Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In December 2002, the Board sought additional development of evidence under a regulation then in effect. Thereafter, in November 2003 (by another Veterans Law Judge) and in November 2006 (by the undersigned) these matters were remanded for further development. In May 2007, a hearing was held before a Decision Review Officer (DRO); a transcript of the hearing is associated with the claims file. In November 2010, May 2012, December 2012 and July 2013 this matter was remanded for additional development. [In November 2010, the Board dismissed the claim of service connection for PTSD and denied appeals to reopen a claim of service connection for residuals of a left wrist injury/fracture and claims of service connection for degenerative joint disease (DJD) (of the wrists, knees, hips, and ankles), a low back disability and chronic obstructive pulmonary disease (COPD), and in July 2013, the Board granted service connection for a depressive disorder.] The issues of service connection for hepatitis C, COPD, and disabilities of the back, hips and knees (COPD and back, hip, and knee disabilities would be claims to reopen) were raised in October 2013 written argument by the Veteran's representative), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected disabilities of depressive disorder, rated 30 percent; residuals of left foot 2nd and 3rd metatarsal fractures, rated 20 percent; and residuals of right foot 2nd metatarsal stress fracture, rated 10 percent; are rated 50 percent combined. 2. The Veteran's service-connected disabilities are not shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The schedular criteria for TDIU are not met, and a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The initial adjudication in this matter preceded the enactment of the VCAA. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that where notice was not mandated at the time of the initial Agency of Original Jurisdiction (AOJ) decision, the AOJ did not err in not providing the notice prior to the initial adjudication; instead, the claimant had a right to timely content-complying notice and proper subsequent VA process. With respect to an increased rating claim like TDIU, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Letters in May 2001 and March 2002 explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A May 2007 letter provided notice regarding substantiation of a claim for TDIU. A June 2008 supplemental statement of the case then readjudicated the matter . See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). It is not alleged that notice was less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the claims files. He has not identified any pertinent evidence that is outstanding. VA examinations and medical opinions addressing the TDIU claim were provided in July 2013 (with addendum in August 2013). The Board finds these examinations and medical opinions, together, to be adequate for rating purposes; the examiners expressed familiarity with pertinent medical history, conducted thorough examinations, and noted all findings necessary for consideration of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or maintain a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that the schedular percentage requirements for a TDIU rating in 38 C.F.R. § 4.16(a) are not met; he does not have a 70 percent or higher combined rating for service-connected disabilities, nor does he have a single service-connected disability rated 60 percent or higher. His service-connected disabilities are depressive disorder, rated 30 percent; residuals of left foot 2nd and 3rd metatarsal fractures, rated 20 percent; and residuals of right foot 2nd metatarsal stress fracture, rated 10 percent; the combined rating for the service connected disabilities is 50 percent. Regarding entitlement to TDIU under 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Consideration of all cases of veterans who are unemployable by reason of service-connected disabilities, but fail to meet the percentage standards set forth in § 4.16(a) must be submitted to the Director, Compensation and Pension Service for consideration of an extraschedular rating. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran contends that his service-connected disabilities prevent him from seeking, gaining, and maintaining meaningful, gainful employment. VA treatment records include a March 2002 report of a VA social work consultation which notes that the Veteran's service connected disabilities are rated 30 percent and that he is 100 percent [totally] disabled. During an October 2007 VA examination, the Veteran reported that he had not worked since 1988. On February 2013 VA psychiatric evaluation, the diagnoses were canabis abuse and depressive disorder. The Veteran reported that his last job was in 1998-1999, when he was self-employed doing maintenance work. His reason for not working was "physical problems." The examiner opined that the Veteran's mental disorders resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorilly, with normal routine behavior, self-care and conversation. On July 2013 VA general medical examination, the Veteran reported that he had been taken off of all pain medication and was unable to walk or exercise due to the pain in his ankles and feet. He also reported having diabetes and neuropathy in both feet with "dead" toes and "no blood circulation" in his legs and feet. The examiner noted that the Veteran arrived in a motorized chair and was able to walk less than 5 feet from the door to the examination room chair and had an antalgic gait. Examination of the feet showed findings (including moderate peripheral edema, decreased sensation at the ankles and intact but diminished dorsalis pedal pulses) consistent with diabetic neuropathy, not caused by or related to degenerative osteoarthritis. The diagnosis was mild early degenerative changes, bilateral feet. The examiner reviewed the Veteran's VA treatment records, opined that the Veteran's foot disabilities do not impact on his ability work, and explained: Relative to the impact of the above service connected condition of minimal osteoarthritis which is essentially unchanged from previous C&P [compensation and pension] exam (residuals of left foot fracture and residuals of right foot stress fracture) on individual unemployability, it is this examiner's medical opinion the 'average worker' without regard to age given the same disability/severity of these conditions the veteran worker would less likely than not have difficulty with prolonged weight bearing activities including standing, walking, bending. The worker would less likely than not have difficulty with pushing, pulling, lifting, carrying and working overhead. With regard to the above named SC [service-connected] conditions, there is no objective evidence to suggest any impact on ability to sit, communicate, follow instructions, remember, concentrate, interact with coworkers and clients and/or other sedentary social/occupational activities. On July 2013 VA mental disorders examination, the diagnosis was depressive disorder. The examiner noted that depressive symptoms appear to be mild to moderate and there has been little change in symptom severity since a prior (February 2013) VA psychiatric examination. The Veteran indiated that he worked as a truck driver until 1993, when his work ended after he sustained a back injury. He reported that he was currently not capable of maintaining employment as he has multiple physical problems including diabetes, COPD, bone disease and foot problem (he did not identify psychological problems as impacting on his ability to work). The Veteran's psychiatric disorder was again found to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorilly, with normal routine behavior, self-care and conversation. The examiner explained: [The Veteran] has mild to occassionally moderate depression. In spite of this, work ended because of physical rather than mental problems. He attributes most of his current work related limitations to physical rather than mental problems. He appears to be of average intelligence and should be able to understand, remember and carry out simple directions. He is capable of completing simple tasks in a timely manner without the need for inordinate supervision. He is able to maintain the brief and superficial contact with others need[ed] for many types of jobs. Judgement, insight and abstract reasoning are intact. He does not present with sufficient psychiatric symptoms that would reasonably be expected to prevent him from engaging in all types of employment. In an August 2013 addendum, the mental health examiner noted that the Veteran's claims file had been reviewed and supports the conclusions stated on July 2013 examination. The evidence of record does not support the claim that the Veteran's service connected disabilities are of such nature and severity as to preclude all forms of substantially gainful employment. As stated by the Court, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. Van Hoose, supra. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Id. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. The Veteran has not worked in several years. However, this fact, in and of itself, does not provide a basis to conclude that the Veteran's service-connected disabilities caused his unemployment. Notably, he has cited to several factors that may not be considered in determining his entitlement to a TDIU rating, including several nonservice connected disabilities. The Board observes that the March 2002 report of VA social work consultation which notes that the Veteran is 30 percent service connected and 100 percent disabled, does not support the Veteran's claim. This notation merely acknowledges that nonservice-connected disabilities account for 70 percent of the Veteran's impairment. As symptoms and impairment due to nonservice-connected disabilities may not be considered in determining entitlement to a TDIU rating, acknowledgement that the major portion of the Veteran's disability is due to such disabilities does not support the claim. The most probative evidence as to whether or not the Veteran is precluded from employment by virtue of his service-connected foot disabilities and depressive disorder is in the July 2013 VA examination reports and August 2013 addendum. The VA examiners thoroughly reviewed the evidence of record and reported clinical findings in detail. They were aware of the specific disabilities the Veteran has service connected, and determined that he is not rendered unemployable by such disabilities. They explained the rationale for the opinions, cited to factual data, and discussed the Veteran's particular occupational limitations. The opinions make clear that the Veteran is not rendered incapable of sedentary work by his service-connected disabilities. It is not shown that the Veteran is unemployable due to his service-connected disabilities alone; the preponderance of the evidence is against this claim. Accordingly the appeal must be denied. ORDER The appeal seeking a TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs