Citation Nr: 1335286 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-35 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 11, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 1986 to July 2006. This matter comes on appeal before the Board of Veterans' Appeals (Board) from August 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in pertinent part, denied entitlement to a TDIU. The Veteran was scheduled for an April 2013 Travel Board hearing, but he withdrew his hearing request in an April 2013 statement, indicating that he did not wish to reschedule the hearing. Accordingly, the hearing request has been withdrawn. The Board remanded the appeal for a TDIU in July 2013. The July 2013 Board remand directed additional development that included a request to obtain VA examinations to address the current effect of the Veteran's service-connected disabilities on his employability. The Board finds that the RO, via the Appeals Management Center (AMC), obtained the requested examinations in substantial compliance with the July 2013 Board remand order and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The record shows that from September 11, 2013, the Veteran was in receipt of a 100 percent combined schedular rating. The Board finds that from September 11, 2013, the claim for a TDIU has become moot in light of the 100 percent schedular rating. See Green v. West, 11 Vet. App. 472, 276 (1998). Moreover, the Veteran has not alleged at that any one service-connected disability interfered with employability, but instead, has argued that the totality of his service connected disabilities have rendered him unable to work and has not sought special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). Because the RO/AMC did not grant the complete benefit sought on appeal, the claim for a TDIU prior to September 11, 2013 remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (if a claimant files a notice of disagreement in response to a decision, and a subsequent decision awards a benefit, but less than the maximum benefit available, the pending appeal is not abrogated). The Board has accordingly recharacterized the issue on appeal. FINDINGS OF FACT 1. Prior to October 2, 2008, it is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 2. From October 2, 2008 to September 11, 2013, evidence of record established that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to October 2, 2008, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2013). 2. Resolving the benefit of the doubt in favor of the Veteran, from October 2, 2008 to September 11, 2013, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In February 2007 and October 2007 letters, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a TDIU claim, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. These notice letters included information regarding how disability ratings and effective dates are assigned. The Veteran was afforded VA examinations in June 2007 and September 2013 to address his TDIU claim. 38 C.F.R. § 3.159(c)(4) (2013). 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). The Board finds that the VA examinations obtained are adequate for rating purposes because they were performed by a medical professional, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. The Board finds that the examiners adequately addressed the effects of the Veteran's disabilities on his employment. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). The Board finds that the RO/AMC substantially complied with the Board's July 2013 remand order in obtaining September 2013 VA examinations which address the Veteran's current occupational impairment due to service-connected disabilities. See Stegall, 11 Vet. App. at 268. Because a September 2013 VA examiner found that the Veteran was unemployable due to service-connected orthopedic disabilities alone and because the Board is granting a TDIU from October 2, 2008, the Board finds that a remand for further opinion addressing the current combined effect of the Veteran's orthopedic, psychiatric, and other service-connected disabilities is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board finds, further, that the evidence already of record sufficiently addresses the Veteran's ability to follow a substantially gainful occupation prior to October 2, 2008. Accordingly, the Board finds that 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). The Board finds that the more recent September 2013 VA examination was considered by the RO/AMC in a September 2013 supplemental statement of the case (SSOC). While the RO erroneously identified unappealed issues related to its grant of increased ratings for service-connected cervical and lumbar spine disabilities, in the SSOC discussion, the RO/AMC considered a TDIU, finding that the issue was moot in light of the Veteran's 100 percent schedular rating. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, Social Security Administration (SSA) medical records, private treatment records, VA examinations, and the Veteran's statements. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims, and to respond to VA notices. The Veteran and representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Law and Analysis TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). The sole fact that a claimant 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. 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. 38 C.F.R. §4.16(a). During the rating period on appeal, the Veteran was service connected for sleep apnea, PTSD, adjustment disorder with anxiety, depression, left shoulder strain, right shoulder impingement syndrome, degenerative disc disease of the thoracolumbar spine, tinnitus, gastroesophageal reflux disease, a scar on the right pinna, temporomandibular joint dysfunction, and cervical spine degenerative disc disease, and he has a number of service-connected disabilities rated as noncompensable, to include a status post left thumb fracture, left plantar fasciitis with a status post second digit fracture of the left foot, bilateral hearing loss, calcified granuloma, hypertension, a scar to the left hand, herpes simplex type 2, and tinea pedis with plantar warts. The Board finds that for the entire rating period, from December 7, 2006 to September 11, 2013, the Veteran's service-connected disabilities met the combined rating threshold criteria for the assignment of a TDIU. During the relevant rating period from December 2006, the Veteran had a combined 80 percent rating with at least one disability rated at 40 percent or more, and from September 2007, the Veteran had a combined 90 percent rating with at least one disability rated at 40 percent or more. Therefore, application of a TDIU is appropriate so long as the severity of the Veteran's service-connected disabilities warrant such a rating. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The next step is to determine whether the Veteran is unemployable due to his service-connected disabilities. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). In evaluating a Veteran's employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). The sole fact that a claimant 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. 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. 38 C.F.R. §4.16(a). Prior to October 2, 2008, it is not factually ascertainable that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Evidence of record dated prior to October 2, 2008 indicates that the Veteran's service-connected disabilities did not render him unemployable, and the weight of the evidence shows that the Veteran was working a 40 hour work week prior to October 2, 2008. During a June 2007 VA examination for individual unemployability, the Veteran reported that he had not worked since leaving the military since July 2006. He reported that his limiting factors for working were shoulder pain, back pain, anxiety, and to a lesser degree, sleep apnea. A complete physical examination was completed. The VA examiner opined, however, that the Veteran was not unemployable due to his medical conditions. In a September 2007 lay statement, the Veteran reported that he was working a power plant and that he was considered a part time employee even though he worked 40 hours a week. He reported wages in the amount of $19.50 an hour, but indicated that because he was classified as a part time employee, he did not receive any benefits from his employer. An October 2007 VA rating examination included a discussion of the occupational impairment caused by service-connected shoulders, spine, feet, left thumb, sleep apnea, temporomandibular joint dysfunction, hearing loss, and tinnitus. The October 2007 VA examiner indicated that cervical and thoracolumbar spine disabilities resulted in mild impairment, interfering with performing manual labor, but stated, with respect to sedentary employment, that there should be no impairment due to the spine. He opined that the Veteran's bilateral shoulder disability would prevent most forms of manual labor but did not prevent the Veteran from being able to perform sedentary labor. The same VA examiner also opined that service-connected disabilities of the feet, left thumb, sleep apnea, temporomandibular joint dysfunction, hearing loss, and tinnitus had no affect the Veteran's ability to maintain gainful employment. A January 2008 VA psychiatric examination shows the Veteran's psychiatric disability had only a mild impact on occupational functioning and a June 2008 SSA evaluation noted that the Veteran was able to function independently, appropriately, and effectively and that his disability was non-severe. During the January 2008 VA examination, the Veteran reported that he was doing temporary work at a power plant on a contract basis, denied problems on-the-job, and reported that he was able to follow detailed checklists to keep on tract at work. He stated that he worked about 40 hours a week, but when the plant shut down, he did not work at all. A June 2008 SSA Psychiatric Residual Functional Capacity Assessment shows that the Veteran was working at a power plant post service making well over what would be considered for substantial gainful activity at $20.00 per hour. In an October 2008 private psychiatric evaluation, associated with the Veteran's SSA claim, shows that the Veteran last worked in May 2008 because his job, which was a temporary one, ended at that time. In a May 2011 VA Form 21-8940, the Veteran identified employment as a power plant equipment operator from 2007 to 2008, for a period of eight months, working 40 hours a week, with only 8 hours of time lost due to illness. The Veteran reported that he was disabled from full time employment in July 2008. The weight of the evidence of record, lay and medical, shows that prior to October 2, 2008, even though the Veteran was working on a temporary contract basis, he was able to maintain a 40 hour work week. Based on the Veteran's own statements made during the course of the January 2008 VA examination and an October 2008 psychiatric examination, limitations to his work were largely attributed to the length of his contract period, or his temporary employee status, and not due to disability. The Board finds that the Veteran is competent to describe his work experience and the extent his employment, and the Board finds that he is credible. Notwithstanding the Veteran's period of unemployment at the time of the June 2007 VA examination, the evidence of record shows that the Veteran was able to work a full 40 hour work week, making approximately $20.00 per hour prior to October 2, 2008. While the Veteran asserts that he was classified as a temporary employee with no benefits, he was nonetheless able to maintain work over a 40 hour work week making well over minimum wage. Prior to October 2, 2008, the evidence of record does not otherwise indicate significant occupational impairment due to service-connected psychiatric disabilities and his physical disabilities are not shown to prevent sedentary employment. A June 2007 VA examination shows that the Veteran was not unemployable due to his combination of physical and psychiatric disabilities. For these reasons, the Board finds that prior to October 2, 2008, the Veteran was employed and it is not factually ascertainable that he was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. There is no indication from the record, prior to October 2, 2008, which suggests that the Veteran's employment was either marginal in nature or that the Veteran was not earning a living wage based on his employment. See Moore v. Derwinski, 1 Vet. App. 356 (1991). From October 2, 2008, the Board finds that the evidence of record established that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. The Veteran contends that he is unemployable due to a combinations physical and psychiatric disabilities in a September 2009 substantive appeal. SSA medical records dated in October 2008 indicate that the Veteran was unable to secure and follow a substantially gainful occupation due to service-connected psychiatric disabilities. The Board finds that October 2, 2008 is the earliest date that it is factually ascertainable that the Veteran was unemployable due to service-connected disabilities. An October 2, 2008 psychiatric evaluation, associated with SSA records, indicates an increase in severity of the Veteran's psychiatric symptomatology. A later October 2008 summary associated with a SSA Psychiatric Residual Functional Capacity Assessment shows that the Veteran was unable to sustain an eight-hour work day to the severity of his depression and anxiety. The Veteran was stated to have moderate restriction in activities of daily living, in maintaining social function, and in maintaining concentration, persistence and pace. The SSA examiner concluded that the Veteran's anxiety and depressive symptoms compromised his ability to sustain a work week on a reliable basis over time. In addition to his psychiatric disability, September 2013 VA examinations indicate that the Veteran's orthopedic disabilities had increased such that they rendered him unemployable. In evaluating the Veteran's cervical spine, lumbar spine, and bilateral shoulder disabilities, the VA examiner stated that it would be difficult at best for the Veteran to obtain and maintain employment even in a sedentary administrative role. The VA examiner opined, therefore, that it was at least as likely as not that the Veteran was unemployable. Other service-connected disabilities were also evaluated, but were not severe on examination, and the VA examiner opined that they were not severe enough to interfere with employment. SSA records indicate that from October 2, 2008, the Veteran's service-connected psychiatric disability compromised his ability to sustain a work week on a reliable basis over time and a September 2013 VA examination indicates that service-connected orthopedic disabilities of the cervical and lumbar spine, and bilateral shoulders rendered the Veteran unemployable. Resolving reasonable doubt in the Veteran's favor, the Board finds that that for the rating period from October 2, 2008 to September 11, 2013, the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. For these reasons, the Board finds that from October 2, 2008 to September 11, 2013 a TDIU is warranted. See 38 C.F.R. § 4.3, 4.7. ORDER Prior to October 2, 2008, a TDIU is denied. From October 2, 2008 to September 11, 2013, a TDIU is granted subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs