Citation Nr: 1341909 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 04-10 781 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU) on an extraschedular basis prior to July 29, 2004. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from April 1977 to March 1979. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2004 of the RO. In December 2009, the Board granted a TDIU rating effective on July 29, 2004 and remanded a TDIU rating on an extraschedular basis prior to July 29, 2004. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system includes a brief filed by the Veteran's representative in October 2013. Other documents are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System does not include any documents. FINDINGS OF FACT 1. During the period of the appeal, the service-connected disabilities included the following: a generalized anxiety disorder rated at 30 percent effective on December 26, 2001 and at 50 percent effective on July 29, 2004; hallux valgus of the left foot rated at 20 percent effective on December 26, 2001, and at 30 percent effective on July 9, 2004; hallux valgus of the right foot rated at 20 percent effective on December 26, 2001 and at 30 percent effective on July 9, 2004; a back disability rated at 10 percent effective on December 26, 2001; a bilateral hip disability rated as noncompensable effective on March 30, 2004; and a bilateral knee disability rated as noncompensable effective on March 30, 2004; the combined rating was 60 percent effective on December 26, 2001, 70 percent effective on July 9, 2004 and 80 percent effective on July 29, 2004. 2. The service-connected disabilities alone are not shown to have precluded the Veteran from securing and following substantially gainful employment consistent with educational and work background prior to July 29, 2004. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating by reason of service-connected disability, to include on a extraschedular basis, were not met prior to July 29, 2004. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). Once the claim of service connection has been substantiated, the filing of a Notice of Disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). The Veteran was provided a VCAA notice letter informing him of the evidence he needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA in October 2003, and the provisions for disability ratings and effective dates in August 2007. To the extent that this notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. Any such procedural defect is cured after the RO provided substantial content-complying VCAA notice, the claim was readjudicated as evidenced by the Supplemental Statement of the Case, dated in April 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Additionally, the Veteran was afforded VA examinations throughout the appeal period. The Board finds the service and post-service treatment records and the VA examinations are adequate for rating purposes. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Analysis VA will grant a TDIU rating when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Prior to July 29, 2004, the Veteran was service connected for a generalized anxiety disorder, rated as 30 percent; hallux valgus of the left foot, rated as 10 percent beginning on May 23, 1997 and as 20 percent beginning on December 26, 2001; hallux valgus of the right foot, rated at 20 percent beginning on December 26, 2001, and 30 percent beginning on July 9, 2004; a back disability, rated as 10 percent beginning on December 26, 2001; a bilateral hip disability rated as noncompensable beginning on March 30, 2004; and a bilateral knee disability rated as noncompensable beginning on March 30, 2004. The Veteran had a combined rating of 60 percent beginning on December 26, 2001, a combined rating of 70 percent beginning on July 9, 2004 and a combined rating of 80 percent beginning on July 29, 2004. In a decision dated in December 2009, the Board determined that the Veteran was precluded from securing and following a substantially gainful occupation consistent with educational and work background effective on July 29, 2004. VA policy is to grant a TDIU rating in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU rating on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In August 2012, the Director concluded that the Veteran had not been rendered unemployable due to his service-connected disabilities prior to July 29, 2004. In his December 2001 claim for increase, the Veteran reported that his employment was greatly affected as he could no longer climb ladders and had problems carrying work materials. He noted that he was only able to work 2 to 3 days per week and that his wages were $12, 500 that year. In January 2002, the Veteran complained that, due to his back and feet, he was unable to work and support his family. In October 2002, he again stated that, due to his service-connected bilateral foot disability, "[he could not] support [his]family because [he could not] hold a job." In March 2004, the Veteran asserted that his foot pain was unbearable in that he could not be on his feet more than 3 to 4 hours per day and that this affected his "ability to be gainfully employed." In his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, received in March 2009, the Veteran reported last working full time in 1995 and becoming too disabled to work in 2003. The Veteran noted that, from March 2000 to 2003, he worked 15 to 20 hours per week at most as a carpenter and that his highest earnings were $2500 to $3500 per month. He noted having 3 years of high school and a GED and not having any education and training since he became too disabled to work. In January 2002, a VA social worker reported that the Veteran had an ongoing struggle with his inability to work full time in construction and to financially care for his wife and son. On VA examination in November 2003, the Veteran reported being unable to tolerate standing on his feet for more than 4 hours at a stretch in a job that required long hours for him to be on his feet. He reported being able to walk only for a block without substantial pain. The Veteran indicated that he would like work on his own making custom furniture and that he would not be obligated stand or work without taking a break when he needed to do so. He did not consider himself to "disabled" in that he felt that his condition only required some accommodation from his normal job. The examiner did not believe that the degenerative changes of the back and lower back pain were related to his service-connected bilateral foot condition. He did believe that the discomfort in the lower extremities was the consequence of his altered gait that placed tension on the muscles that supported the joints. The VA examiner noted that the "[V]eteran's own submission he [was] not totally unemployable. However, he would require a significant change in the hours and tasks he perform[ed] as a contract carpenter." In connection with a VA psychiatric examination in November 2003, the examiner noted that the Veteran's foot condition had exacerbated his anxiety in that he chronically worried about supporting his family. The Axis I diagnosis was that of a general anxiety disorder. A GAF score of 59 based on moderate impairment of functioning was assigned at that time. A January 2004 VA progress note also showed that the Veteran was in "chronic pain due to his feet which limit[ed] his ability to work." On VA examination of the feet on July 9, 2004, the examiner indicated that the Veteran at most was able to work 20 hours per week and "(m)any of the bosses were not able to hire him because of his baseline orthopedic compromise." On another VA examination on July 9, 2004, the examiner opined that occupationally the Veteran was totally dependent on his body for his livelihood and was severely stressed because of his inability to meet his financial obligations due to his inability to work as a result o his severe orthopedic impairment. The examiner further stated that the Veteran "[was] very frustrated by his inability to work and his inability to support his family." The examiner concluded that the Veteran had "severe occupational alteration associated with his foot deformity affecting multiple other joints". In August 2012, the VA Director of the Compensation Service provided an opinion that, prior to July 29, 2004 the Veteran was not unemployable due to his service-connected disabilities. On review of the , the weight of the evidence shows that the Veteran's work history from the time he filed his claim for increase in December 2001 had been somewhat sporadic. However, the evidence does not show that he was precluded from securing and following all forms of appropriate substantially gainful employment prior to July 29, 2004 by his service-connected disabilities as rated at that time. Significantly, the Veteran is shown to have had work experience in carpentry and construction, but he also had 3 years of high school and a GED. Under the regulations, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment, for example, as a self-employed worker or at odd jobs shall not be considered substantially gainful employment. Id. "Marginal employment may also be held to exist on a facts found basis . . . when earned annual income exceeds the poverty threshold." Id. Significantly, the Veteran has reported working on a limited basis from 2000 and 2003, but earning as much as 2,500 to 3,500 per month. While the service-connected bilateral hallux valgus is shown to have impaired his ability to be on feet on a sustained basis during the period prior to July 2004, the November 2003 VA examination found that he was not prevented from working in all forms of employment. Severe bilateral foot disability was first clinically identified in July 2004. Moreover, the VA psychiatric examination in November 2003 found that the Veteran was only moderately impairment by anxiety at that time. It was not until July 2004 that the medical evidence showed that he was having greater social and occupational impairment due to the service-connected psychiatric disorder. In sum, the weight of the evidence shows that the Veteran, prior to July 2004, was able to work, albeit on a reduced basis, at his usual occupation . Accordingly, on this record, the Board finds that the claim for a TDIU rating prior to July 29, 2004, to include on an extraschedular basis must be denied. ORDER Prior to July 29, 2004, entitlement to a TDIU rating to include on an extraschedular basis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs