Citation Nr: 1334675	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  07-28 188	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities effective from May 30, 2008 to June 22, 2009.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David Gratz, Counsel






INTRODUCTION

The Veteran served on active duty from November 1990 to June 1991, including service in the Southwest Asia Theater of Operations from January to May 1991.  He also had reserve service with the Army National Guard from 1953 to 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to a TDIU due to service-connected disabilities.  In a December 2009 letter, the Veteran, through his representative, expressly limited the period of consideration for a TDIU to the period from May 2008 to June 2009.  The Veteran's representative clarified in a September 2012 letter that a TDIU should be considered for that period prior to June 22, 2009.  The Veteran's representative further clarified in a September 2013 letter that a TDIU should be considered from May 30, 2008 to June 22, 2009.  The issue listed on the title page reflects assent to those requests.

In April 2013, the Veteran submitted additional argument with a waiver of Agency of Original Jurisdiction (AOJ) consideration.  Therefore, the Board may properly consider such newly received evidence.

In February 2011 and October 2012, the Board remanded this case for further development.  The case has returned to the Board for appellate review.

In May 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received in July 2013.  In July 2013, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him and his representative a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter.  The Veteran's representative responded with an Appellant's Response Brief in September 2013.  Accordingly, the Board will proceed with the consideration of his case.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The preponderance of the evidence shows that the Veteran's service-connected disabilities did not preclude him from securing and following a substantially gainful occupation during the appellate period from May 30, 2008 to June 22, 2009.


CONCLUSION OF LAW

The criteria for a TDIU during the appellate period from May 30, 2008 to June 22, 2009 have not been met.  38 U.S.C.A. 38 U.S.C.A. §§ 1154(a), 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

The duty to notify was satisfied prior to the initial August 2008 Agency of Original Jurisdiction (AOJ) decision by way of a letter sent to the Veteran in July 2008 that informed him of his duty and the VA's duty for obtaining evidence.  In addition, the letter also provided notice of the type of evidence necessary to establish a disability rating or effective date pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment and personnel records, VA and private treatment records, and lay statements have been obtained.  The evidence of record does not show that the Veteran is in receipt of Social Security Administration disability benefits for his service-connected disabilities; absent any evidence showing that the Veteran is in receipt of said benefits for his claimed disorder, VA need not attempt to obtain his SSA records.  Golz v. Shinseki, 590 F.3d 1317, 1323 (2010).

A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board finds that the July 2013 VHA opinion as to the effect of the Veteran's service-connected disabilities on his ability to secure and maintain a substantially gainful occupation during the appellate period from May 30, 2008 to June 22, 2009 is adequate because the medical expert discussed the Veteran's medical history, described the service-connected disabilities and their effect on employability in sufficient detail, and supported all conclusions with analysis.

This claim was remanded by the Board for additional development in February 2011 and October 2012.  There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has obtained the Veteran's treatment records and obtained an adequate medical opinion.  D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Thus, the Board finds that VA made reasonable efforts to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim.  No further assistance to develop evidence is required.

Analysis: TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability.  Id.  Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

When determining whether a veteran's service-connected disabilities preclude him or her from securing or following substantially gainful employment, the Board is required to consider and discuss the veteran's educational and occupational history and explicitly relate these factors to the disabilities of the individual veteran.  Cathell v. Brown, 8 Vet. App. 539, 544 (1996).

Throughout the appellate period-i.e., from May 30, 2008 to June 22, 2009-the Veteran's service-connected disabilities included chronic bronchitis, rated 60 percent disabling; degenerative arthritis of the right knee status post knee replacement surgery, rated 30 percent disabling; degenerative arthritis of the left knee status post knee replacement surgery, rated 30 percent disabling; posttraumatic stress disorder (PTSD), rated 30 percent disabling; intervertebral disc disease of the cervical spine, rated 20 percent disabling; recurrent actinic keratosis of the face and forehead, rated 10 percent disabling; tinnitus, rated 10 percent disabling; a left forehead scar, rated noncompensable; and bilateral hearing loss, rated noncompensable.  Thus, taking into account the bilateral factor for his service-connected knee disabilities, his combined rating for the appellate period from May 30, 2008 to June 22, 2009 was 90 percent disabling.  38 C.F.R. §§ 4.25, 4.26.

The Board finds that the preponderance of the evidence shows that the Veteran was not unemployable by reason of service-connected disabilities based on the evidence of record, including the July 2013 VHA medical expert's retrospective opinion and rationale.

The Veteran contends that a TDIU was warranted throughout the appellate period because his service-connected disabilities precluded him from securing and following a substantially gainful occupation.

In response to Board remands dated February 2011 and October 2012, VA obtained two examinations of the Veteran as to his unemployability due to service-connected disabilities, in July 2011 and January 2013.  Regrettably, both examiners limited their analysis to the Veteran's employability at the time of the examination, and, notwithstanding the plain language of the Board's remands, did not opine on whether the Veteran's service-connected disabilities, either alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation prior to June 22, 2009.  The January 2013 VA examiner wrote that "it is impossible to determine whether or not [the Veteran] was unemployable prior to June 22, 2009 without resorting to speculation," but failed to provide any rationale for her statement.  Consequently, the Board finds that the July 2011 and January 2013 VA examination reports are inadequate.  The Veteran's representative correctly asserted in an April 2013 post-remand brief that reliance on the January 2013 VA examiner's inadequate report would constitute both a failure of the duty to assist and a Stegall violation.  In order to address this objection in a timely manner, the Board requested a VHA opinion in May 2013, and a VA medical expert provided said opinion in July 2013.

The July 2013 VA medical expert reviewed the relevant documents in the Veteran's claims file.  He extensively discussed the Veteran's occupational and educational history, including his high school education supplemented by technical school, his ownership and running of a convenience store, his decade-long employment with a water testing company, and his employment driving trucks for a construction company and driving motor homes for a dealer.  The VA medical expert found that the Veteran had been continuing with exercise, yard work, and housework in November 2008; had been golfing and playing the saxophone; and had been experiencing improvement in his bilateral knee functioning after having undergone knee replacement surgeries in 2001.  The VA medical expert opined:

In the appellant's letter seeking TDIU in September 15, 2008, he cited concerns about exposure to cold and to people with infections rendering him unemployable[;] these concerns apparently did not interfere with golfing and jazz venues where similar risks would be encountered.

In conclusion, there was documentation of activities during the period in question that seemed to indicate that his service-connected disabilities were not impairing him to the point that he was completely prevented from participating in gainful employment similar to that done by him in the past.  There was a lack of documentation available to my review to indicate progression of the disabilities in the period of time in question to the point that [they] precluded gainful employment commensurate to his experience and education.

Based on a review of the evidence of record, including the July 2013 VA medical expert's retrospective review of the Veteran's treatment records and lay statements, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during the appellate period.  The Board finds that the opinion of the July 2013 VA medical expert warrants greater probative weight than the Veteran's own assertions that his service-connected disabilities rendered him unemployable, based on the physician's medical expertise, review of the relevant medical records, and understanding of the severity of the Veteran's disabilities.

Consequently, the benefit of the doubt rule does not apply, and the claim for entitlement to a TDIU due to service-connected disabilities during the appellate period is denied.


ORDER

Entitlement to a TDIU for the period from May 30, 2008 to June 22, 2009 is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs