Citation Nr: 1338467 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-17 270 ) 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). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from January 1968 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that, in relevant part, denied a total disability rating based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. Service connection is currently in effect for a low back disability, rated 40 percent; a right wrist disability, rated 10 percent; a left ankle disability, rated 10 percent; neuropathy of the right ankle, rated 10 percent; tinnitus, rated 10 percent; and chronic otitis media and residuals of right inguinal herniorraphy, rated noncompensable. The combined disability rating is 60 percent. 2. The most probative evidence shows that the Veteran's service-connected disabilities, standing alone, are not of such severity as to effectively preclude substantially gainful employment consistent with the Veteran's education and occupational experience; and an exceptional factor that takes the case outside the norm is not present. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340. 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claims, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in June 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the May 2013 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Accordingly, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Total Disability Rating Based on Individual Unemployability It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). A total disability rating based on individual unemployability due to service-connected disability 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) (2013). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2013). The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. Service connection is in effect for a low back disability, rated 40 percent; a right wrist disability, rated 10 percent; a left ankle disability, rated 10 percent; neuropathy of the right ankle, rated 10 percent; tinnitus, rated 10 percent; and chronic otitis media and residuals of right inguinal herniorraphy, rated noncompensable. The combined disability rating is 60 percent. Thus, he does not meet the schedular criteria listed in 38 C.F.R. § 4.16(a) at any time during the rating period on appeal. However, consideration of entitlement under 38 C.F.R. § 4.16(b) must be considered. Thus, the question then becomes whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, or work which is more than marginal, and that permits the individual to earn a living wage consistent with his education and occupational experience. Moore v. Derwinski, 1 Vet. App. 356 (1991). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed, is employed only part-time, or has difficulty obtaining employment, is not enough. A 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). Applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Accordingly, it should now be crystal clear that the ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. Geib v. Shinseki, No.2012-7164 (Fed. Cir. Oct. 29, 2013). See also Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). In his claim, the Veteran noted that he worked for 20 years as a mail carrier with the United States Postal Service after a 20-year military career. He completed two years of college. Initially, the Board acknowledges that the Veteran has been determined to be disabled by the Social Security Administration (SSA). However, while a determination by the SSA regarding the Veteran's ability to work constitutes evidence that must be considered with respect to his total disability rating based on individual unemployability due to service-connected disability, the SSA's determination is neither dispositive nor binding on VA since the agencies have different disability criteria. Collier v. Derwinski, 1 Vet. App. 413 (1991). The Board finds that the most probative evidence of record is found in the January 2013 VA examination report, and does not establish that the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. After a full review of the record and a thorough clinical evaluation, the examiner concluded that although the Veteran's back disability precluded heavy lifting, he had no other restrictions. In fact, he was noted to be fully functioning with his activities of daily living, and was able to help with home chores and errands. His muscle strength was 5/5 and there was no atrophy in the lumbosacral spine. He walked with a normal gait. Notably, the private medical statements supporting the Veteran's assertions of unemployability indicated that he could no longer perform the duties of a mail carrier. However, they did not indicate that the Veteran was unable to perform any type of employment. Additionally, the Board observes that the Veteran in fact, reinjured his back at work. A December 2008 private physical therapy note indicated that the Veteran injured his back "getting out of his truck at work" and that the pain became "progressively worse." A VA general medical examination in August 2010 concluded that the Veteran was precluded from his work as a mail carrier, any type of heavy labor, and sedentary employment due to his back and ankle disabilities. However, the examiner did not comment on the Veteran's work-related injury, for which it was noted that he was receiving Workers' Compensation benefits for his back on page 52 of the examination report. In fact, the Veteran was able to work as a mail carrier for 20 years following service discharge even with his service-connected low back disability until the subsequent workers' compensation injury, which was of such severity that it required retirement due to disability. As such, the Board has accorded these opinions limited probative value. In his substantive appeal, the Veteran asserted that his claim should be submitted to the Director of Compensation and Pension Service for extraschedular consideration. The Board disagrees. Since VA has determined that the Veteran is not unemployable due to service-connected disabilities, such referral is not warranted. In view of the foregoing, to the extent that his service-connected disabilities cause occupational impairment, the Board finds that the Veteran is appropriately compensated by the current combined rating of 60 percent; and his situation does not present such an exceptional or unusual disability picture as to warrant referral for assignment of a total disability rating based on individual unemployability due to service-connected disability pursuant to 38 C.F.R. § 4.16(b). The Board is aware of the Veteran's contentions that he cannot work due to his service-connected disabilities. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for VA benefits. However, the Board finds that the most probative, competent clinical evidence of record that shows that the Veteran's service-connected disabilities do not prevent him from performing sedentary employment, outweigh his assertions. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a total disability rating based on individual unemployability due to service-connected disabilities, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs