Citation Nr: 1335150 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-19 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1962 to October 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2010, this claim was remanded for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). While the case was in remand status, the RO granted a TDIU effective from May 18, 2009. The case has been returned to the Board and is ready for further review. FINDING OF FACT Prior to May 18, 2009 the evidence does not indicate that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to May 18, 2009, the criteria for entitlement to a TDIU were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in May 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him 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 necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment, records from the Social Security Administration and examination reports. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a "substantially gainful" occupation (i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16(b) (2013); Moore v. Derwinski, 1 Vet. App. 356 (1991), 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). In determining whether the schedular threshold is met, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor if applicable, are considered one disability. Id. Disabilities resulting from common etiology or affecting a single body system are also considered one disability. Id. Entitlement to TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Prior to May 18, 2009, the schedular percentage requirements for a TDIU rating under section 4.16(a) were not met. The record reflects that the Veteran is service-connected for coronary artery disease associated with diabetes mellitus, rated as 10 percent disabling from June 2006 and as 60 percent disabling from May 18, 2009; for diabetes mellitus, rated as 20 percent disabling, for peripheral neuropathy of the right upper extremity, rated as 10 percent disabling; for peripheral neuropathy of the left upper extremity, rated as 10 percent disabling; for peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; for peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; for tinnitus rated as 10 percent disabling; for peripheral vascular disease of the right lower extremity rated as noncompensable; ; for peripheral vascular disease of the left lower extremity rated as noncompensable; for erectile dysfunction rated as noncompensable; and for hearing loss of the left ear, rated as noncompensable. For the rating period in question, he had a combined rating of 60 percent. See 38 C.F.R. § 4.25, Table I. As such, the Veteran does not meet the minimum schedular criteria listed in 4.16(a). A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based upon individual unemployability, due solely to the Veteran's service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, VA treatment records from 2005 to May 2009 have been reviewed. They show treatment predominately for the Veteran's diabetes mellitus as well as for nonservice-connected disorders. In February 2005, he reported working part time in janitorial work. In April 2007, he noted having numbness and tingling of the hands and feet. In May 2007, he reported having leg numbness. In June 2008 and again in February 2009, it was noted that he was performing janitorial work part time. Private treatment records dated from 2006 show continuing treatment predominately for diabetes as well as for nonservice connected disorders during the time period in question. In March 2007, he was seen for a checkup. It was noted that he complained of erectile dysfunction over the past year, still having partial function. It was found that he had diabetes mellitus, uncontrolled and erectile dysfunction. An SSA disability report shows that the Veteran was granted benefits for back disorders and diabetes mellitus. The Veteran underwent a VA diabetes examination in October 2006. The claims file was reviewed. The examiner noted that there was no restriction of activities and that the Veteran works as a janitor in a local high school and had no problems. Mowing the grass and working around the house were not affected by the diabetes. He was taking Metformin. On VA heart examination in October 2006, his blood pressure was 150/64, and the heart had normal sinus rhythm. He denied dizziness, angina, shortness of breath, fatigue, or syncope. His METS level was 7.6. On VA peripheral nerves examination, there was decreased pain sensation and light touch form the elbow distally in the upper extremities in the glove like manner, and in the lower extremities there was decreased pain sensation from midway between the ankle and the knee distally in the stocking like manner. There was weakness in grip and in wrist extension bilaterally. In March 2007, on VA peripheral nerves examination, the Veteran reported having numbness and tingling of his upper and lower extremities. Examination showed decreased pain sensation from the midforearm distally in a glove-like manner. There was decreased sensation to pain from the ankles distally in a stocking like manner. There were decreased tendon reflexes at the left Achilles. All reflexes both at the knee, ankle, wrist, and elbow were somewhat depressed but present with the most marked depression at the left Achilles. The Veteran underwent a VA fee basis diabetes examination in September 2008. He indicated that he was on a restricted diet. He was taking Metformin. He reported having tingling and numbness of the arms, hands legs or feet. He indicated that he had trouble getting and keeping are erection and that he took Viagra. The Veteran stated that his doctors had advised him not to work due to his neck problems. Neurological examination showed abnormal left and right lower extremity sensory function. The Veteran underwent a VA audio examination. On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 30 LEFT 30 30 30 45 50 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. Sensorineural hearing loss was diagnosed as was tinnitus. Upon review of the claims file, the Board finds that the evidence weighs against referral for extraschedular consideration. In his application for a TDIU, the Veteran noted that his highest year of education was high school. He reported that he last worked in December 2006 for the Harrison High School. In reviewing the evidence, the Board does not find that there is an exceptional or unusual impairment to warrant referral for TDIU on an extra-schedular basis during the time period in question. The Veteran has not submitted a competent medical opinion suggesting that his service-connected disabilities alone have caused him to be unable to secure or follow a substantially gainful occupation prior to May 2009. As well, the record does not include any findings or histories of an inability to perform or maintain substantially gainful employment prior to May 2009 due to service-connected disability. The Veteran has indicated that he left his last job due to diabetes and neuropathy; however he indicated on VA examination in September 2008 that he could not work due to his nonservice-connected cervical spine disorder. Additionally, he indicated that he worked part time in 2005, 2006, 2008 and 2009 as a janitor. There is nothing in the file during this time period to indicate that the Veteran was unemployable solely due to his service-connected disorders. Thus, the Board finds that the preponderance of the evidence weighs against referral for extra-schedular consideration. While the Veteran is competent to report his functional limitations due to his service-connected disabilities, the Board finds that whether his service-connected disabilities alone are sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment is a determination that is too complex to be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309. He has indicated that he could not work due to nonservice-connected neck problems, and it is noted that he was granted benefits from SSA for back problems as well as for diabetes mellitus. Thus, the Board finds that the Veteran is not credible with respect to why he discontinued working. See Caluza, 7 Vet. App. at 511; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the claimant). In this case, prior to May 2009, the evidence does not probatively suggest that a TDIU is warranted: the medical evidence contains no findings suggestive of unemployability due solely to a service-connected disorder and the Veteran has not reported that his service-connected disabilities alone rendered him unemployable during this period. Consequently, after review of the evidence, the Board finds that the service-connected disabilities do not preclude the Veteran from obtaining or maintaining employment prior to May 2009, and TDIU is not warranted during that time frame. Accordingly, prior to May 2009, entitlement to a TDIU on a schedular basis is denied as a matter of law, as the Veteran's service-connected disabilities do not meet the percentage requirements, and the preponderance of the competent evidence weighs against referral for extra-schedular consideration. See 38 C.F.R. § 4.16(a)(b). Therefore, the benefit-of-the-doubt rule does not apply, and entitlement to TDIU is denied. ORDER Entitlement to a TDIU prior to May 18, 2009 is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs