Citation Nr: 1334697 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 97-10 115 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to July 1982. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a February 1997 rating decision issued by the Regional Office (RO) which denied an increased rating for the Veteran's right knee disorder. In a September 2010 remand, the Board noted that that under certain circumstances the claim for an increased rating for a service connected disability includes a claim of entitlement to TDIU and this was recognized as part of the Veteran's appeal. See Rice v. Shinseki, 22 Vet. App. 447. This matter has been before the Board previously in February 1999 (at which time TDIU had not yet been recognized as an issue in the case), September 2010, and September 2012. It has now been returned to the Board for appellate disposition. TDIU had previously been denied in 2003; the claim on appeal arises after that time. The Veteran testified before a now retired Veterans Law Judge in August 2010. The Veteran was offered another hearing before a current Veterans Law Judge but he did not avail himself of this opportunity. FINDINGS OF FACT 1. From July 8, 2000, the Veteran had the following service connected disabilities: right knee lateral meniscectomy, rated as 30 percent disabling; right knee arthritis, rated as 10 percent disabling; and left knee traumatic arthritis, rated as 10 percent disabling. His combined rating was 50 percent. Although service connection for a right knee scar was awarded, effective April 30, 2001, a zero percent evaluation was assigned. 2. On and after January 18, 2013 (exclusive of the period from April 10, 2001 to July 31, 2001 when a temporary 100 percent rating was in effect), an evaluation of 30 percent was assigned for the right knee arthritis. Accordingly, the Veteran's combined rating was 60 percent. 3. The Veteran's service connected disabilities alone do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). A comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Mayfield v. Nicholson, 499 F.3d 1317, 1320 (Fed. Cir. 2007). However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). VCAA notice requirements are applicable to all five elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent several letters which explained how VA could assist him with developing evidence in support of his claims. These included an August 2003 letter which explained that VA was responsible for obtaining evidence from federal sources and could help him obtain evidence from a person or agency identified by the Veteran. The letter also explained that the Veteran could be entitled to TDIU if he was unable to work due to his service connected disabilities and set forth the scheduler requirements for obtaining a TDIU rating. In a September 2003 letter the RO also explained that VA would make reasonable efforts to help the Veteran get evidence in support of his claim, such as medical records, employment records, or records from other federal agencies. A July 2009 letter explained the criteria which applied to assigning ratings for the Veteran's service connected knee disabilities. The Veteran's claim was thereafter readjudicated by VA in an April 2013 supplemental statement of the case (SSOC), prior to which the Veteran was provided the opportunity to submit additional evidence and argument. Additionally, at the Board hearing, testimony was elicited regarding the elements necessary to support the Veteran's claims for a higher disability rating for his service connected disabilities which included information about his prior employment and education as well as his reasons for not obtaining other employment. Thus the material issue on appeal was fully developed. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (noting that a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked but there is no prejudice to the Veteran where the material issue is fully developed on the record); see also 38 C.F.R. § 3.103(c)(2) (2012). VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Of record are service treatment records, VA treatment records, private treatment records, a copy of a Social Security Administration (SSA) decision, various written statements submitted by the Veteran, and a transcript of the Veteran's testimony at the August 2010 hearing. VA also attempted to obtain SSA medical records, but in May 2011 the SSA responded that the records were unavailable. Although the Veteran was not notified via a letter thereafter, this fact was noted in the July 2011 rating decision. Accordingly, the Board finds that a reasonable person would understand from the statements in the rating decision that no SSA records were available or reviewed in adjudicating his claims. Thus, there is no prejudice to the Veteran in proceeding to adjudicate his claim. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (noting that defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where a reasonable person could be expected to understand from the notice what was needed), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There is no indication that additional relevant evidence exists in support of the Veteran's claim. The Board notes that the Veteran submitted a copy of an Equal Employment Opportunity Commission (EEOC) decision after the issuance of the most recent statement of the case. However, a copy of this document was already in the record prior to that time so there so no remand is required to allow initial consideration of this document by the RO. Additionally, it does not provide any information that supports the Veteran's claim. The Veteran was afforded multiple examinations of his knee throughout the period of his appeal, and an examination with opinion on employability specifically was obtained in January 2013. The Board finds this opinion adequate as it is based upon a review of the claims file and a thorough examination of the Veteran. For these reasons, the Board finds that the requirements of the VCAA were satisfied in this case. The Board also finds that there was substantial compliance with the instructions set forth in the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand instructed that an opinion be obtained regarding the effect of the Veteran's service connected disabilities on employment and that the claim be readjudicated after the opinion was obtained. The requisite opinion was obtained in January 2013 and the claim was readjudicated in April 2013. Analysis The Veteran claims that his service connected bilateral knee disabilities prevent him from working. He also claims that he is unable to work due to not having a high enough disability rating to receive accommodations for his disabilities at work. He felt that he could not work because he did not have enough capital to start up his own business. He also claims that he lost his job as a VA chaplain because of falls due to his knee disabilities. He also felt that he lost his job because he was discriminated against on the basis of disability, race, and religion and because other workers were jealous of him. He asserts that his dismissal from VA's chaplain training program meant that other employers would be unwilling to hire him. The Veteran obtained a college degree through VA's vocational rehabilitation program and briefly worked as a chaplain at a VA hospital after that. Prior to receiving his degree, the Veteran stated at his hearing that he worked detailing cars. At a January 2013 examination, however, the Veteran stated that he worked as a janitor. A VA Form 21-4192 indicates that the Veteran last worked in November 1997 as a chaplain and stopped work due to resignation. He had not lost any work due to disability at his chaplain job. On and after July 8, 2000 (exclusive of the period from April 10, 2001 to July 31, 2001 when a temporary 100 percent rating was in effect), the Veteran's combined rating was 50 percent. As of January 18, 2013, the Veteran's combined disability rating was 60 percent. A total disability rating for compensation purposes may be assigned where the scheduler rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). The following will be considered as 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, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Where a Veteran meets the scheduler criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Rather, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. To make this determination, the Veteran's level of education and previous work experience may be considered, but not his age or any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Veterans who are unable to secure and follow any substantially gainful occupation as the result of their service-connected disabilities, viewed in light of their individual circumstances, but without regard to age, should be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Further, 'unemployability' is synonymous with 'inability to secure and follow a substantially gainful occupation.' VAOGCPREC 75-91. Substantially gainful employment is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) When the percentage requirements in 38 C.F.R. § 4.16 are not met, entitled on an extraschedular basis may be considered. Essentially, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hattlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to a Veteran's education, special training, and previous experience, but not to his age or the impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, prior to January 10, 2013, the scheduler criteria for TDIU were not met since the Veteran did not have a combined rating of 60 percent or two or more disabilities with at least one disability a minimum of 40 percent disabling with a combined rating of at least 70 percent. However, beginning January 10, 2013 the scheduler requirements were met. This is because the Veteran's multiple disabilities of the lower extremities are considered one disability for purposes of applying the percentage requirements of 38 C.F.R. § 4.16a. Thus, he is considered to have a single disability that is 60 percent disabling. The Veteran's VA and private treatment records show ongoing treatment for his bilateral knees for many years. His documented complaints include constant knee pain, initially involving the right knee but progressing to both knees. He experiences severe right knee pain and left knee pain to a lesser extent. He also complained of instability, clicking, popping, locking, and giving way which were somewhat improved by surgery on the right knee in 2001 although he still continued to have problems. In 2003, it was noted that the Veteran would be unable to do a physical job due to knee pain. In 2004, it was recommended the Veteran continue to use a brace for stability. By 2013, he eventually started using a walker secondary to weakness of the knees. In a September 2000 VA examination report, the examining health care provider opined that the Veteran would do well with a sedentary type job and might be a candidate for a total right knee arthroplasty in the future. In a July 2009 VA examination, the Veteran reported he was last employed in 1998 as a chaplain. He reported his activities of daily living were affected and he used a cane. In a January 2013 VA examination, the examiner fully assessed the Veteran's knees, including his subjective complaints and objective abnormalities documented as less movement than normal, weakened movement, pain on movement, disturbance of locomotion, interference with standing, sitting, and weight bearing, and deformity of the right knee. He opined that the Veteran would likely have difficulty with employment that entailed standing, squatting, prolonged ambulation, or carrying weight and that he was more suited for sedentary employment. After examining the Veteran's scar, he concluded that there was no effect of the scar on employment. The Veteran was granted SSA disability benefits in November 1995 due to serious impairments listed as history of schizophrenia and bipolar disorder and right knee pain. The majority of the decision discussed the Veteran's psychiatric problems, noting that the Veteran was terminated from several jobs due to problems with his supervisor, a conviction for assault with intent to kill, and incarceration following an incident in which he threatened a federal judge. The decision note that the Veteran's psychiatric problems caused him to be unable to interact appropriately with co-workers, supervisors, or the public or to handle ordinary stresses so that the sedentary work base was significantly eroded. There was very little discussion of the right knee. The Veteran is not service connected for a psychiatric disability. In any event, SSA's decision was not based solely on the Veteran's knee disability; rather, significant consideration was also given to the Veteran's psychiatric disorders which are not service connected and may not be considered with respect to entitlement to TDIU. The Board notes that the Veteran's lay statements regarding the Veteran's lay statements in support of his claims. Lay witnesses are competent to testify as to their observations. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran asserts that he cannot do heavy lifting, prolonged walking, or perform physical labor due to his knees. At the 2013 VA examination, he claims that he was released from the chaplain training program at a VA hospital due to his knee pain and falls and that the job involved too much walking. However, in many other statements of record, the Veteran alleges he lost his chaplain job due to his prior conviction for threatening a federal judge, because of his race, because of his religion, because he reported misconduct by coworkers, and because of discrimination against him because he was a disabled Veteran. An EEOC decision indicates that VA had placed the Veteran on a probationary period due to his failure to complete a portion of the chaplain training program successfully and that he resigned after that. At his August 2010 hearing the Veteran testified that he did volunteer work but could not get a job because his failure to complete the chaplain training program meant nobody would hire him. He testified that he "knew" that he would be able to work full time if he had not been let go from the program. He testified that he did not think about his physical problems when he was doing his ministry although he did not move around as much. To the extent that the Veteran claims that he cannot perform physical labor due to his bilateral knee disabilities, his statements, which are corroborated by medical opinions to that effect, are both competent and credible. However, to the extent that he alleges that his knee disabilities prevent all substantially gainful employment, his statements are not credible. He has given conflicting reasons for losing his last job, most of which were entirely unrelated to his knee disabilities. It appears that he actually resigned from his last job due to being placed on a probationary period after failing to complete course work which was not shown to have any relationship to the Veteran's knees. Many of his submissions and lawsuit filings sought reinstatement into a chaplain job at VA, which is inconsistent with his current claim that his knees prevent him from working. He has a college degree and there has been no showing that the Veteran's knees prevent sedentary employment which should be available to the Veteran with his level of education and training. At his hearing in August 2010, he admitted he could work full time despite his knee disabilities. The Board also notes that in various papers throughout the course of this appeal the Veteran has repeatedly misrepresented the findings and orders of other courts, which does not add to his credibility. The Board finds the VA examiner's conclusion that the Veteran is likely not capable of certain physical activities due to his knee disabilities, but capable of sedentary type employment despite his bilateral knee disabilities, to be highly probative as it is supported by a review of the record and findings after a complete examination of the Veteran's service connected disabilities. There is no evidence to the contrary other than the Veteran's own contentions which the Board has found not credible. Although the SSA found the Veteran unemployable, the decision was based, in part, upon the Veteran's non-service-connected psychiatric disorder which precluded sedentary employment. As previously stated, the Board does not find the Veteran's statements to the effect that his knee disabilities caused him to lose his job as a chaplain or that they prevent him from engaging in any substantially gainful employment to be credible in light of his many different stories about the loss of his job and failure to be employed after losing that job. For the period prior to January 10, 2013, the Board concludes that the Veteran's claim for TDIU due to service connected disabilities does not warrant referral to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The weight of the evidence for that period does not indicate an inability to secure or follow substantially gainful occupation due to service-connected disabilities. For the period beginning January 10, 2013, the Board likewise concludes that the criteria for TDIU are not met. As explained above, there has been no showing that it is at least as likely as not that the Veteran is unable to engage in substantially gainful employment solely as a result of his service connected disabilities. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Entitlement to TDIU is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs