Citation Nr: 1341125 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 97-32 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active service from November 1980 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision of the Montgomery, Alabama Regional Office (RO), which denied service connection for a chronic back disorder and an increased disability evaluation for the Veteran's hemorrhoids. In August 2001, the Board remanded the Veteran's claims to the Montgomery, Alabama RO for additional action. In April 2002, the Montgomery RO, in pertinent part, re-characterized the Veteran's right inguinal hernia disability as right inguinal hernia repair residuals evaluated as 10 percent disabling. In July 2002, the RO denied service connection for the loss of use of a creative organ. The Veteran moved to Georgia. The claims file was subsequently transferred to the Atlanta, Georgia RO. In August 2004, the RO re-characterized the Veteran's inguinal hernia disabilities as post-operative bilateral inguinal hernia repair residuals; assigned a 40 percent evaluation for that disability; and effectuated the award as of April 1, 1996. In January 2005, the Veteran was afforded a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is of record. In April 2005, the Board denied both service connection for a back disorder and the loss of use of a creative organ, as well as denying increased evaluations for the Veteran's post-operative bilateral inguinal hernia repair residuals and hemorrhoids. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2007, the Court set aside the April 2005 Board decision and remanded the Veteran's appeal to the Board for additional action. In December 2007, the Board remanded the Veteran's appeal to the RO for remedial action. In December 2008, the Board again remanded the Veteran's appeal to the RO for evidentiary development. The Board, in November 2009, remanded the claim for entitlement to a TDIU based on the holding of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). That is, the Board noted that the Veteran raised a claim for individual unemployability as part of the claims for increased ratings, and it was directed that he be provided notice as to how to substantiate a claim for a TDIU (that portion of the claims had not been addressed by the RO in accordance with Rice). In addition to this remand, the November 2009 Board decision denied claims for entitlement to service connection for a chronic back disorder and sterility/loss of use of a creative organ. Additionally, increased ratings for service-connected hemorrhoids and bilateral inguinal hernias were denied, and a separate 10 percent evaluation was established for painful inguinal hernia scars. In June 2011, the Board remanded the claim for entitlement to a TDIU for further development. The Board requested that the Veteran be scheduled for a VA examination to determine if the Veteran's service connected bilateral post-operative hernias, hernia scars, and hemorrhoids, individually or in combination with each other, prevented the Veteran from engaging in any type of substantially gainful employment. The examination was held in December 2011 and an opinion was obtained. There has been substantial compliance with the previous Board remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 269, 271 (1998). The Veteran's claim was most recently re-adjudicated by the RO in Atlanta, Georgia in a May 2012 Supplemental Statement of the Case, which denied entitlement to TDIU. The Veteran filed an appeals election in May 2012 stating that he was not satisfied with the RO's decision. As a result, this matter is once again before the Board. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not meet the schedular requirements for a TDIU. 2. The Veteran is not rendered unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). When considering whether the veteran's disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. The Board notes that the Veteran is currently in receipt of service connection for bilateral hernia residuals at a 40 percent rating. The Veteran is also service connected for painful scars of bilateral hernia repair, at 10 percent. [A May 2012 rating decision proposed reducing the rating from 10 percent to noncompensable, but it does not appear this was ever effectuated.] Additionally, the Veteran is service connected for hemorrhoids and erectile dysfunction both at a non-compensable rating. The Veteran contends that these disabilities, on their own or in combination, prevent him from engaging in any type of substantially gainful employment; his last reported date of employment was in 2002. However, the Veteran has not met the threshold requirements for entitlement to TDIU on a schedular basis, as his combined service-connected rating is 40 percent; however, this does not mean that the claim must necessarily fail. 38 C.F.R. § 4.16, 4.25. Indeed, TDIU may still be warranted if the Veteran does not meet the criteria for a schedular entitlement, and the evidence of record still demonstrates that he is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16 (b). In such a case, however, entitlement to an extraschedular TDIU would require the Board to first determine whether referral to the Director of Compensation is warranted. It is noted in the record that the Veteran has been unemployed since May 2002. See February 2009 VA C&P Examination Records. However, according to surgery notes the Veteran was told that he could return to work post-surgery in February 2002. See February 2002 VA General Surgery Note. The Veteran is a high school graduate who has worked as a commercial cleaner throughout his employment history. See June 2005 SSA Decision. In addition to his service-connected disabilities, medical evidence shows that the Veteran is diagnosed with schizoaffective disorder, major depressive disorder, and chronic obstructive pulmonary disease (COPD). These are significant physical and mental comorbidities, and the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). However, the standard for determining disability award is different for SSA than it is for VA. Specifically, a SSA disability award is based on consideration of the totality of an individual's disabilities, whereas total disability for VA purposes is based only on the impact of a veteran's service connected disabilities, and therefore excludes non-service connected disabilities from consideration. For instance, the SSA took into consideration the Veteran's entire disability picture including his non-service connected disabilities of COPD, a major depressive disorder and a schizoaffective disorder in order to conclude the Veteran is disabled. See June 2005 SSA Decision. The SSA had state psychological and medical consultants review the Veteran's conditions as a part of his claim. Dr. Charles Bailey, a state medical consultant, completed a physical residual capacity assessment pertaining to the Veteran based on the diagnosis of inguinal hernia repair. Dr. Bailey opined that the Veteran was capable of medium work. Moreover, Dr. Bailey opined that the Veteran's reported symptoms and their alleged effect on functioning were not supported by the medical evidence. Dr. Louise Tashjian affirmed Dr. Bailey's conclusions. Id. Ultimately, SSA concluded that the Veteran's capacity for sedentary work is reduced by the pain from him hernia surgeries. The Board concedes the Veteran's residuals from the hernia surgeries, in particular, would arguably affect his physical abilities. VA examinations in 2008 and 2009 noted his complaints of constant pain from the hernia surgeries and concluded that the residuals of the surgeries, as well as the hemorrhoids, would have a moderate effect on activities of daily living such as chores, shopping, exercise, and recreation, and a severe effect on sports. Such limitations would affect the Veteran's ability to engage in strenuous physical labor, and SSA's conclusion that his complaints of constant pain would affect his ability to engage in sedentary labor seems reasonable. This does not, however, equate to an inability to maintain or obtain gainful employment; it merely reflects limitations - a fact already recognized by the 40 percent rating in effect for the residuals of the hernia surgeries, along with the separate 10 percent rating for the painful scars. In order to create a more clear picture of whether or not the Veteran's service-connected disabilities interfere with his ability to obtain and perform substantially gainful employment, the Veteran was afforded a VA examination in January 2012. The VA examiner examined the Veteran's scars and determined that the scars had no functional impact on the Veteran's ability to work. The VA examiner also considered whether the Veteran's two post bilateral inguinal hernia repairs impacted the Veteran's ability to work and it was determined that this disability did not render the Veteran unemployable. Lastly, the Veteran's service connected hemorrhoids were examined and the examiner noted that currently the Veteran is not suffering from hemorrhoids and is not rendered unemployable due to his non-compensable service connected hemorrhoids. Overall, the VA examiner determined that the Veteran does not have any service-connected conditions that prevent him from performing activities of physical or sedentary employment. Prior VA examinations also do not show that the Veteran's service-connected conditions prevent him from obtaining or retaining employment. VA outpatient records show continuing complaints of pain since the last surgery in 2002, but no specific opinions that he is unable to work. There is no contradictory evidence in the record, other than the Veteran's own statements, to indicate that he is unable to obtain or maintain employment due solely to his service-connected disabilities. Again, while SSA considered some reduction in capacity due to his residuals of the hernia surgery, the conclusion that he was disabled was based on a variety of conditions, most of them not service connected. The Board acknowledges the Veteran's assertions that he is unable to obtain employment. However, while sympathetic to his concerns, the Board finds the opinions obtained in the January 2012 VA examination report to be more probative. These opinions reflect a clinical understanding of the Veteran's limitations due to his service-connected disabilities. The Veteran's representative has argued that, in the issuance of their denial, the Appeals Management Center (AMC) erred in relying too heavily on the SSA's determination that a mental illness, which is not service-connected, was the cause of the Veteran's inability to work. However, based upon the conclusions of the SSA doctors and the VA examiner, it is reasonable to conclude that the Veteran's service connected disabilities are not the cause of the Veteran's inability to work. As a result, the Board finds no competent evidence that the Veteran's service-connected disabilities render him unemployable. After considering the totality of the record, the Board finds that a preponderance of the evidence supports the finding that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation and, therefore, referral to the Director of Compensation is not warranted. In making its determination, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU rating, the doctrine is not applicable in the instant appeal and his claim must be denied. Id. Duties to Assist and Notify VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.156(a), 3.159, 3.326 (a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision through a February 2010 notice letter. The Veteran's claim was subsequently readjudicated, most recently in a 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exist that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Additionally, the Veteran testified at a hearing before the Board in April 2005. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2). Service treatment records are associated with the claims file, as are all post service treatment records identified by the Veteran. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded a VA examination in January 2012. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F.3d 1339, 1341 (Fed. Cir. 2002). The VA examination is adequate for the purposes of determining entitlement to TDIU, as it involved a review of the Veteran's pertinent history and an examination of the Veteran and provides an opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs