Citation Nr: 1341671 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 07-14 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to TDIU, among other issues. A timely appeal was perfected from that decision. An informal conference on this matter was held before a Decision Review Officer (DRO) on January 23, 2007. The conference report has been associated with the file. The Veteran had a January 2010 Travel Board hearing before a Veterans Law Judge who has left the Board. In September 2013, the Veteran was notified about his hearing options and given 30 days to respond. He has not responded. The Board will adjudicate the claim without another hearing. 38 C.F.R. § 20.704. In June 2010, the Board awarded service connection for seizure disorder and denied an increased rating for posttraumatic stress disorder (PTSD). The TDIU claim was remanded for additional development with recognition of the newly service connected seizure disorder. The Veteran had appointed a private attorney as his representative. In March 2011, VA notified the Veteran that his private representative was not accredited before VA and could not represent him. 38 C.F.R. § 14.629(b). He was given VA Form 21-22a to appoint another representative. To date, he has not appointed another representative and is unrepresented. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran is service connected for prostate cancer residuals, rated as 60 percent disabling; diabetes mellitus, Type II, seizure disorder, and PTSD, all rated as 10 percent disabling each. His overall combined rating is 70 percent. 2. The Veteran has completed 2 years of Master's level education and he has experience working as a County Administrator. 3. It is not shown that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. 2013); 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). 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 January 2005 that provided information as to what evidence was required to substantiate the TDIU claim and of the division of responsibilities between VA and a claimant in developing an appeal. The duty to notify has been met. Next, VA has a duty to assist the Veteran in the development of the claim. 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 further concludes that the duty to assist has also been met. The Veteran's service treatment records and private medical records have been obtained. He has submitted several written statements in support of his claim. The Veteran was scheduled for a VA psychiatric examination in June 2011, but failed to appear without showing good cause. VA is not obligated to furnish an additional psychiatric examination. 38 C.F.R. § 3.655; see also Floore v. Shinseki, U.S. Court of Appeals for Veterans' Claims (Court) Slip Op. No. 12-2017 (November 5, 2013). In June 2011, the Veteran was afforded an adequate VA/QTC physical examination in connection with his claim (with an August 2011 addendum). Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the examiner did not explicitly consider the Veteran's service connected diabetes mellitus, Type II, he noted the current diagnosis of diabetes. Notably, the Veteran has non insulin dependent diabetes which is controlled by diet. The examiner reviewed all medical records, interviewed the Veteran, and conducted a thorough physical examination, including X-ray studies, visual acuity, and a complete blood count. The physical examination was grossly normal and did not reveal any diabetic complication or otherwise significant service-connected disability. The examiner had a fully informed review of the Veteran's medical history and current overall disability picture. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). He expressed a broad opinion against unemployability which was inclusive of all physical disabilities. His opinion is plausible and consistent with the additional evidence of record. The examiner's failure to list diabetes mellitus, Type II as a service connected disability in his opinion is inconsequential. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the January 2010 hearing, the presiding Veterans Law Judge identified the issues on appeal. The Veteran provided testimony as to all treatment received for his claimed disabilities and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. In June 2010, the Board granted service connection for seizure disorder and remanded the TDIU claim to further assist the Veteran by furnishing an updated VA examination. The duties imposed by Bryant were thereby met. In compliance with the Board's June 2010 remand, VA furnished a June 2011 VA examination (with August 2011 addendum) with accompanying opinion on the Veteran's employability. A supplemental statement of the case was issued in May 2013. The record is in substantial compliance with the June 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Analysis Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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, and that, 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). Throughout the pendency of this appeal, the Veteran's total combined rating for service-connected disabilities (prostate cancer residuals, diabetes mellitus, Type II, seizure disorder, and PTSD) is 70 percent with prostate cancer residuals being rated as 60 percent disabling. See 38 C.F.R. §§ 4.16(a), 4.25. Thus, he meets the schedular TDIU criteria. Id. In determining whether the Veteran is unemployable, consideration may be given to his education, training, and special work experience, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Throughout the claims period, the Veteran has not been engaged in full time employment. He reports working for approximately 28 years at the L.A. County Department of Health Services in Administration. See December 2004 VA Form 21-8940. His educational accomplishment is at the Master's degree level. He lists stress, prostate cancer residuals, and diabetes mellitus, Type II as his disabilities. Private medical records from 2000 to January 2005 do not contain any explicit report that the service connected disabilities rendered the Veteran incapable of gainful employment. As relevant, an April 2004 neurology evaluation report reflects that the Veteran had syncope symptoms. He had been involved in three motor vehicle accidents (MVA). During his most recent MVA, he denied any loss of consciousness, drowsiness, syncope, memory dysfunction, among other neurological symptoms. The examiner noted that he had denied prior neurological symptoms. She recommended a sleep study to rule out sleep apnea and also order an EEG test in the unlikely instance seizures were occurring. Notably, sleep apnea was found and the Veteran was recommended for a continuous positive airway pressure machine (CPAP). The neurological testing (EEG) showed an abnormality indicative of an increased risk for partial seizure that may or may not secondarily generalize. An April 2004 cranial CT scan showed mild cerebral and posterior fossa atrophy. Meanwhile, an October 2004 MRI of the brain was normal. In an October 2004 report, the neurologist stated that the Veteran probably had a complex partial seizure at the time of the April 2004 MVA. She noted that the CT scan showed age related atrophy and sleep study confirmed severe sleep apnea. The January 2007 DRO conference report shows that the Veteran did not receive regular treatment for PTSD, including medication. He denied taking medication for diabetes. The Veteran's treating primary care physician submitted a February 2007 letter. He had treated the Veteran for about 20 years. He noted the Veteran to have the following medical conditions: hypertension, dyslipidemia, diet controlled diabetes mellitus, history of prostate cancer, and complex partial seizures. He reported that all of the medical conditions were stable and under control on current medication. The Veteran's treating neurologist also submitted a February 2007 letter. She reported that the Veteran was under treatment for a seizure disorder. He had one seizure in 2004, which resulted in a MVA. He was currently on medication and had been seizure free since then. At the January 2010 hearing, the Veteran stated that he did not have additional information to report or submit for the TDIU claim. The Veteran was afforded a June 2011 VA/QTC examination. He dated his history of prostate cancer to service, although the examiner later noted that medical records indicate he was treated for prostate cancer in 2003. He denied any history of urinary tract stones or renal problems. His primary residual was urinary incontinence which required twice daily use of absorbent pads. He did not identify any residual disorders associated with his in-service concussion. He acknowledged having a history of seizures, but over the time the condition improved. He was not on any epilepsy medication. He denied any history of a stroke. Clinical examination, to include neurological and psychiatric findings, was grossly normal. The examiner noted that the Veteran had his prostate removed as part of cancer treatment. X-rays were negative for cardiopulmonary disease. Blood count was abnormal with a low platelet level found. As relevant, the examiner diagnosed status post prostatectomy with scar, status post concussion, and seizure disorder caused by concussion. He characterized the seizure disorder as asymptomatic. He commented that the Veteran was a poor historian as his reports of his medical history were inaccurate and recommended a possible memory evaluation. He provided a negative TDIU opinion. He noted that the Veteran had a 2004 MVA due to seizure disorder and was told not to drive. However, the Veteran continued to drive. The Veteran has asserted that his service connected disabilities render him incapable of gainful employment. He is competent to report his ongoing symptoms which are capable of lay observation. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, he is not a medical professional. The record does not document any symptoms from a service connected disability that would permit a patently obvious conclusion as to his employment capabilities. (See Private medical records from 2000 to 2005; February 2007 letters from Drs. J.H. and D.K.). Here, the question of whether his service connected disabilities preclude gainful employment is a complex medical question beyond the capabilities of lay observation. Competent medical evidence is necessary to show unemployability. 38 C.F.R. § 3.159(a). To the extent the Veteran is competent to comment on the effect his service-connected disabilities have on his ability to work, the Board does not find his assessment to be frank and unbiased. He is seeking benefits based on his inability to work and naturally believes to be entitled to such. However, the Board finds the objective assessment by June 2011 VA medical examiner to be a more accurate assessment of his industrial capacity. The June 2011 VA medical opinion weighs against the claim. The examiner made his conclusion following a review of the record and findings from a thorough contemporaneous clinical examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Veteran's work history and education level makes him a suitable candidate for sedentary employment. The examiner noted that the Veteran was a poor historian. However, the clinical examination, including neurological findings, was grossly normal and did not reveal any service connected disability that would pose obvious occupational impairment consistent with his occupational history. The June 2011 VA examiner's opinion is plausible and consistent with additional evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board considers the June 2011 medical opinion persuasive evidence weighing against a finding of unemployability due to service connected disabilities. The Veteran's PTSD has been exhibited by mostly mild findings and is not shown to be particularly disabling. In summary, the evidence does not suggest that the Veteran's service connected disabilities have rendered him unemployable. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs