Citation Nr: 1338053 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-31 048 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from October 1976 to June 1987. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the RO. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has been granted service connection for depression (rated as 50 percent disabling) and Crohn's disease (rated as 40 percent); his combined evaluation of 70 percent meets the schedular requirements for a TDIU rating. 2. The service-connected depression and Crohn's disease, alone, are shown to preclude the Veteran from securing and following all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance 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). An October 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in June 2010. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in May 2011; the Veteran has argued that this opinion was inadequate as the examiner did not specifically consider the Veteran's service connected depression in forming the opinion on unemployability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board finds that the examiner did consider the Veteran's depression, as evidenced in him noting the diagnosed depression and inquiring as to the Veteran's mental health, to which the Veteran reported that he does not see any mental health providers for his condition. Furthermore in a TDIU determination, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." Geib v. Shinseki, No.2012-7164, 2013 WL (Fed. Cir. Oct. 29, 2013). As the ultimate issue of whether TDIU should be awarded is not a medical issue, but a determination for the adjudicator, additional medical opinions are not required and would be a waste of resources. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. The analysis in this decision focuses on salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Analysis The Veteran alleges that he is not employable due to his bilateral hearing loss and tinnitus and is therefore entitled to TDIU. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has two disabilities, depression rated as 50 percent and Crohn's disease rated as 40 percent. To determine the combined disability rating the two assigned percentages are not simply added together, but rather are combined using a formula contained in 38 C.F.R. § 4.25. Using this table, a 50 percent rating combines with a 40 percent rating to result in a 70 percent rating. As the Veteran has multiple disabilities rated with a combined rating of 70 percent and one disability at least 40 percent the schedular eligibility requirements under 38 C.F.R. § 4.16(a) are met. The question is whether the service-connected depression and Crohn's disease prevent the Veteran from obtaining and retaining some form of substantially gainful employment. Factors to be considered include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor to be considered. 38 C.F.R. § 4.16. In September 2010, a VA mental health examination was conducted. The Veteran reported having pain and irritation caused by his Crohn's disease. He reported having an Associates degree in accounting, but being able to work because it is too stressful. The Veteran did work a little at H&R Block for a couple of months, but quit due to stress. The examiner found that the Veteran was able to perform the very non-physical task of accounting work and stayed at that for a long period of time even though he could not take the stress and pressure of any kind of work. The examiner noted that the Veteran did not appear employable at this time except in the lowest of job positions, but those positions were available for him to take. He reported that he quit his job two years earlier as he could not deal with the stress. The Veteran noted that he was physically unable to work, and the examiner noted that the medical record supported that. Additionally, the Veteran reported recently having successful knee surgery that helped tremendously in physical movement and reduced pain. In an October 2010 letter Dr. NM stated that the Veteran had "numerous medical problems including heart disease with coronary stents and angioplasty, hypertensive heart disease, hyperlipidemia, fibromyalgia, Crohn's disease, chronic fatigue syndrome, etc." and was permanently disabled from these diseases and unemployable. In a November 2012 statement, Dr. NM opined that the Veteran was disabled and unemployable due to the service-connected Crohn's disease and depression. In connection with a May 2011 VA examination, the examiner discussed the Veteran's medical history including nonservice-connected disabilities of fibromyalgia, degenerative arthritis, post right knee replacement, coronary artery disease with past myocardial infarctions and catheterizations, hypertension, hyperlipidemia, and chronic tobacco use with no known lung disease. The Veteran reported in connection with his Crohn's disease that his weight, energy and appetite remained stable and unchanged. He denied having any symptoms or history of dyspepsia, nausea, vomiting, dysphagia, or ulcers. He reported having pain of 3/10 that did not awaken him at night or prevent his daytime activities. The Veteran had mild flares once or twice a week resulting in diarrhea that he blamed on worsening anxiety or emotional stress. It had been more than one year since he had any significant daytime stool incontinence away from home to affect his activity or require unplanned change of clothes. He took no specific medications to control bowel consistency or frequency. The Veteran denied having anemia or inflammatory bowel joint destruction, skin rashes or ulcerations, liver inflammation, an eye or mucosal inflammation. He reported not seeing any mental health providers for his depression and anxiety, but he did state that his emotional stress and anxiety definitely caused flares of his inflammatory bowel disease and prevented any long term regular employment. The Veteran reported no long term employment since his discharge from service. The examiner evaluated the Veteran's physical condition however, the findings are immaterial as the Veteran is only service connected for Crohn's disease and depression and the determination of unemployability is based upon the effect of the service connected disabilities only. The examiner reviewed the claims file and concluded that the service-connected Crohn's disease and its continuing treatment were not sufficient to render the Veteran unemployable for sedentary work. He was noted to be able to work from six to eight hours per day standing or sitting at his own choice with bathroom facilities available in the work area and not lifting more than 10 pounds. The examiner also found that the Veteran's nonservice-connected medical problems included fibromyalgia, knee arthritis, hearing loss and coronary disease also did not show findings sufficient to render him unemployable. In September 2010, a VA examiner noted that the record supported the Veteran's claim that he was physically unable to work. The examiner found that he did not appear employable at this time except in the lowest of job positions. Dr. NM, the Veteran's treating physician, opined that the Veteran is disabled and unemployable due to Crohn's disease and depression. The Board finds that the Veteran's Crohn's disease and depression prevent him from substantially gainful employment. Although the VA examiners found that the Veteran was employable for limited periods of time, and in the lowest of job positions, this type of marginal employment is not considered substantially gainful employment. Accordingly, based on this record, a TDIU rating is warranted. ORDER TDIU is granted ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs