Citation Nr: 1334417 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-32 662 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 RO decision. In May 2011, the Veteran testified before the undersigned during a Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims and has been reviewed. The Board remanded the matter of the Veteran's unemployability compensation claim in March 2012 and again in June 2013. All actions requested on remand have now been fully accomplished. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA electronic file. FINDINGS OF FACT 1. The Veteran has been awarded service connection for diabetes mellitus, Type II with hypertension, rated as 20 percent disabling; and for diabetic retinopathy, rated as 10 percent disabling. The combined disability rating is 30 percent. 2. The Veteran is a high school graduate; his primary employment and work experience has been as a commercial truck driver. 3. The Veteran is not rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW A total disability rating for compensation based upon individual unemployability due to service-connected disabilities is not warranted, either on a schedular or an extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information as to unemployability claim in a July 2009 letter prior to the initial decision in the case. With regard to the VA examination reports which are of record, 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). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). The Board finds that the VA examinations obtained in this case are adequate. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). VA treatment records and VA examination reports have been obtained and reviewed in support of the Veteran's claim. The Veteran's hearing testimony has been carefully reviewed. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. With respect to the aforementioned May 2011 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing must 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. Here, during the hearing, the Acting Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. She asked specific questions, directed at identifying the impact of the Veteran's service-connected disabilities upon his employability. She also specifically sought to identify any pertinent evidence not currently associated with the claims. Finally, neither the Veteran nor his representative has 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. As such, the Board finds that, consistent with Bryant, the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Analysis Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. The Veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. It is further provided 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose. The Veteran has been awarded service connection for diabetes mellitus, Type II with hypertension, rated as 20 percent disabling; and for diabetic retinopathy, rated as 10 percent disabling. The combined disability rating is 30 percent. 38 C.F.R. § 4.25. According to the November 2009 informed medical opinion of a VA ophthalmologic examiner, the Veteran's visual impairment is not so great as to limit commercial driving or daily activities. According to the November 2009 informed medical opinion of a VA examiner who conducted the diabetes mellitus examination, employment other than driving commercially appeared to remain possible. According to his own report, the Veteran is a high school graduate. His primary employment and work experience has been as a commercial truck driver. However, the evidence of record, to include the hearing testimony, establishes that he was unable to continue working as a truck driver after his diabetes progressed to the point where he became insulin-dependent, due to federal government regulations which prohibit anyone whose diabetes is controlled by insulin from holding a commercial driver's license. During the hearing he also testified as to his current financial circumstances. He explained that after he was unable to drive a truck anymore, he received disability benefits from his employer for a brief period, until he was able to file a successful claim for Social Security Disability benefits. After he reached the age of retirement, his Social Security benefits were automatically converted to Social Security retirement and he has been receiving this income ever since. In addition, he receives his VA compensation benefits at the 30 percent disability rate. He argues, however, that because he had to stop working solely on account of his service-connected diabetes, he should receive VA unemployability compensation benefits. The Veteran's service-connected disabilities are part and parcel of his diabetes. As such both disabilities are deemed to be of a common etiology. Even so, however, his disabilities do not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a). Because this regulation also provides that adjudicators are to provide consideration to the nature of the prior employment and the reason for termination, the Board remanded the matter previously for referral to the Director of the Compensation and Pension Service for extra-schedular consideration under the provisions of 38 C.F.R. § 4.16(b). An extra-schedular unemployability rating under the provisions of 38 C.F.R. § 4.16(b) requires establishing an inability to obtain or retain employment. Keller v. Brown, 6 Vet. App. 157 (1994). In this case, the Director delegated such review to staff members at the VA's Appeals Management Center. In a July 2013 memorandum, that organization concluded that while the Veteran's insulin-dependent diabetes does preclude him from maintaining a commercial driver's license, it does not rule out his ability to work in a sedentary environment, or to perform work which does not require a commercial driver's license. 38 C.F.R. § 4.16(b). Upon careful review, the Board concludes that the preponderance of the evidence is against a finding of unemployability due to service-connected diabetes and diabetic retinopathy. That the impairment resulting from diabetes is significant is unquestionable, and the VA has recognized this impairment through the award of a combined disability rating of 30 percent. However, the evidence of record is not persuasive that the Veteran is unemployable, except with regard to jobs that require a commercial driver's license. The VA is responsible for attempting to apply the governing laws and regulations equally and equitably so as to ensure fair treatment for all similarly-situated Veterans. 38 U.S.C.A. § 7104. Toward this end, the rating schedule is intended to measure the "average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1. Thus, one particular occupation does not warrant special/additional compensation versus another occupation; and the inability of the Veteran to perform one particular occupation does not per se indicate his inability to perform another occupation. The Veteran's argument that he has no other workplace experience is pertinent and has been considered. He has not persuaded the Board, however, that he is unable to perform any other substantially gainful employment, as required for an extra-schedular award under the provisions of 38 C.F.R. § 4.16(b). Rather, he has testified that he lives on his Social Security retirement benefits. The responsible officials within VA have opined that an extraschedular disability rating is not warranted, and the Board must agree. There is competent and credible medical evidence which establishes that the Veteran's diabetes mellitus does not preclude all forms of employment. The preponderance of the evidence is against the Veteran's claim for unemployability compensation benefits, and the appeal must be denied. ORDER A total disability rating based upon individual unemployability due to service-connected disabilities is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs