Citation Nr: 1334420 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 05-22 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran did not explicitly appeal the denial of entitlement to TDIU in the August 2003 rating decision, but he did complete an appeal of a June 2003 rating decision denial of a November 2002 claim for an increased rating for his lumbar spine disability. (The June 2003 rating decision deferred adjudication of the November 2002 TDIU claim.) The Veteran asserts that he cannot work due to low back pain. Therefore, the TDIU claim is part of the appealed increased rating claim. This matter was previously before the Board in June 2012 when it was remanded for additional development. It has been returned to the Board for further appellate review. FINDINGS OF FACT 1. Throughout the rating period on appeal, service connection has been in effect for depressive disorder, evaluated as 50 percent disabling; lumbosacral strain, evaluated as 40 percent disabling, history, right ankle sprain, evaluated as 20 percent disabling; and residuals of cervical spine strain, evaluated as 10 percent disabling. The combined disability rating was 60 percent prior to September 7, 2004, and 80 percent from September 7, 2004. 2. The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran was unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities at any time during the rating period on appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in June 2012. The Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to develop the TDIU claim, including the scheduling of VA examinations to assess whether the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The record reflects that these examinations were scheduled for October 2012 and November 2012. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the prior remand, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353 -23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Court, in the consolidated appeal of Dingess/Hartman v. Nicholson, held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. 19 Vet. App. 473 (2006). VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was not provided with a VCAA notice prior to the initial adjudication of the TDIU claim in August 2003. Rather, the first notice letter was issued in July 2012. The July 2012 letter advised the Veteran of the criteria he needed to meet for entitlement to TDIU, of the evidence necessary to substantiate the claim, and of his and VA's obligations in providing evidence for consideration. The letter also informed the Veteran of how to substantiate disability ratings and effective dates generally. With respect to the timeliness, the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that a statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, providing the Veteran with VCAA-compliant notice prior to readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See id., citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, subsequent to the letter sent in July 2012, the Veteran was provided with an SSOC. Therefore, any deficiency of timing of notice was rectified by subsequent readjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with VA examinations. The Veteran's VA and private medical records, Vocational Rehabilitation summary, and the report of an October 2012 VA psychiatric examination are of record. The record reflects that the Veteran applied for Supplemental Security Income from the Social Security Administration (SSA), but the response from SSA indicated that they had no records on file. The Veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the report, he provided an opinion that was based on the evidence of record, including the Veteran's work and medical history and current findings. Nothing suggests that the examiner documented findings inconsistent with the medical history outlined in the claims file. Thus, the Board does not find the examination to be inadequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In accordance with the Board's June 2012 remand, the Veteran was scheduled for additional VA examinations to assess the impact of his service-connected disabilities on his employability. Examinations were scheduled for August 2012, but the Veteran was unable to attend and requested that they be rescheduled. A VA psychiatric examination was performed in October 2012, but the Veteran did not attend the VA examinations scheduled for October 2012 and November 2012 to evaluate the effect of his orthopedic disabilities on his employability. VA is not obligated to provide the Veteran with further opportunities for a VA examination without a showing of good cause for such failure. The Veteran has offered no good cause explanation with regard to his not attending the examinations. Arguments submitted through his representative in February 2013 and September 2013 discuss his October 2012 VA psychiatric examination and a March 2011 VA orthopedic examination, respectively, but do not reference the VA examinations the Veteran did not attend. Therefore, the claim will be evaluated on the basis of the evidence of record. 38 C.F.R. §3.655 (2013). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and that additional effort to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis A total disability evaluation for compensation may be assigned where the schedular evaluation is less than total when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered 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. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341 , 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director, Compensation and Pension Service. "Substantially gainful employment" is not currently defined in VA regulations. Marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. However, consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. Throughout the rating period on appeal, service connection has been in effect for depressive disorder, evaluated as 50 percent disabling; lumbosacral strain, evaluated as 40 percent disabling; history of right ankle sprain, evaluated as 20 percent disabling; and residuals of cervical spine strain, evaluated as 10 percent disabling. The combined disability rating was 60 percent prior to September 7, 2004, and 80 percent from September 7, 2004. Therefore, the Veteran did not meet the threshold criteria for TDIU under 38 C.F.R. § 4.16(a) for the rating period on appeal prior to September 7, 2004, but did meet the schedular rating percentage criteria from September 7, 2004. The Veteran's application for TDIU reflects that the Veteran was last employed in June 2002. However, the Board determines that the preponderance of the most probative evidence fails to demonstrate that it is at least as likely as not that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. At the October 2012 VA psychiatric examination, the Veteran indicated having last worked full-time in 2001 as a car salesman and that he worked part-time in 2003 at a retail establishment and then on a limited basis as a tutor. He reported being hired as a dental review coordinator in 2009, but that the position did not work out because the position was not what he expected and that he "broke down" as a result. The Veteran indicated that he had an Associate's degree in "instructional assisting" and was 12 credits shy of another Associate's degree in graphic design. He last attended school reportedly in Fall 2010. The Veteran stated that he just could not bring himself to apply for jobs and put resumes in the mail and that he was concerned about making it through the day physically if employed. The examiner opined that the Veteran's service-connected depressive disorder did not in and of itself render him unable to secure and maintain substantially gainful employment at this time. He indicated that the depressive disorder would render the Veteran less reliable and productive because it affects his motivation and may make him more susceptible to missing work. However, the examiner opined that the depressive symptoms would not render him less able to concentrate and follow instructions or less able to interact with co-workers and supervisors. The examiner concluded that the Veteran is not unemployable solely on the basis of his symptoms of depressive disorder. With regard to the Veteran's orthopedic disabilities, the Board again notes that the Veteran did not attend the scheduled VA examination to assess the effect of these disabilities on his employability. However, there are several notes in other documents that are relevant. A February 2003 VA examiner stated that the Veteran should avoid heavy lifting and prolonged lifting, bending, or twisting. An April 2005 VA examination report notes that the Veteran was attending school part-time. The Veteran participated in the VA Vocational Rehabilitation program and was enrolled in a program in finance as of Spring 2005, expecting to earn an Associate's Degree in 2007. A Vocational Rehabilitation Counseling Synthesis-Closure Summary from October 2004 indicated that the Veteran had no serious employment handicap. A May 2004 VA treatment record states that the Veteran had started a new job the previous week, but does not provide detail on the type of employment. It is also not clear when that employment ceased. An August 2004 VA treatment note indicates that the physician was concerned that the Veteran was deconditioned after not working for two years, but should be able to do some type of light to sedentary duty, particularly if he were to build up his endurance for doing those types of activities. In September 2006, his psychologist noted that the Veteran was attending school full-time with a major in education. An August 2007 VA examination report states that the Veteran had been unemployed for one to two years and that the reason he gave for that status was that he was a full-time student. Impairment of his daily activities was described as mild to moderate by the examiner. A January 2009 VA treatment note relates that the Veteran was still in school, which was reiterated at the February 2009 VA examination. The March 2011 VA examiner noted that the Veteran was a full-time student in graphic design. The examiner noted that the Veteran needed to stand up and move about several times per hour while in class and that the back disability limited walking, bending, lifting, and twisting movements. The Veteran has not submitted any competent opinion to contradict the above evidence. The criteria for entitlement to TDIU for compensation purposes is that the Veteran is unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities, without reference to nonservice-connected disabilities or other factors. The evidence does not demonstrate that the Veteran meets these criteria. While the Board notes that the Veteran has only had brief periods of employment since he last worked full-time, the evidence does not establish that this lack of employment was due solely to service-connected disabilities. In fact, the Veteran attended school full-time for several years during the appeal period and indicated that school was the reason he was not working on one occasion. While both his service-connected psychiatric and physical disabilities would have an impact on his occupational functioning and impose some limitations on the type of work for which the Veteran is suited, the competent evidence does not establish that his service-connected disabilities alone, but considered in combination, prohibit him from engaging in substantially gainful employment consistent with his educational attainment and occupational history. Therefore, the claim of entitlement to TDIU is denied. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim of entitlement to TDIU. Therefore, his claim must be denied. ORDER Entitlement to TDIU due to service-connected disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs