Citation Nr: 1342801 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 08-27 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from January 1982 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This case was most recently before the Board in August 2013, when the Board remanded the Veteran's claim. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2013). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated August 2007 notified the Veteran of all of the above elements. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured, which include VA treatment records and private treatment records. The Veteran has received a number of VA examinations that, in part, address his ability to secure and maintain employment. Pursuant to the Board's August 2013 Remand, the Veteran was most recently provided with an examination in August 2013. The examination report indicates that the examiner reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. In his September 2008 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge, and a local hearing was scheduled for November 2008. In November 2008, before the scheduled hearing, the Veteran indicated that he wished to cancel this hearing. The Veteran's hearing request has therefore been deemed withdrawn. 38 C.F.R. § 20.704 (2013). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Beyond the ratings contemplated by the Rating Schedule, VA regulations establish objective and subjective standards for an award of a TDIU. 38 C.F.R. § 4.16(a) (2013). If the veteran's schedular rating is less than total, a total disability rating may be assigned when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). For the purpose of determining what constitutes one 60 percent disability, disabilities of one or both lower extremities, including the bilateral factor, if applicable, are considered to be one disability. 38 C.F.R. § 4.16(a) (2013). "Substantially gainful employment" is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA Adjudication Manual, M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d). This term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a) (2013); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). A veteran may be considered unemployable upon termination of employment that occurred because of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that the veteran is unable to secure further employment. 38 C.F.R. § 4.18 (2013). The determination as to whether a TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Prec. Op. VA Gen. Counsel 75-91 ("Unemployability" in VA Regulations on Total Rating Compensation, Inability to Secure and Follow Substantially Gainful Employment; No Average Person Standard, 57 Fed. Reg. 2317 (1992)). Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. § 3.341(a), 4.19 (2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Turning to the facts in the instant case, the Veteran is service connected for the following disabilities: (i) right femoral neck stress fracture, evaluated as 20 percent disabling; (ii) left femoral neck stress fracture, evaluated as 20 percent disabling; (iii) lumbosacral spine disability, evaluated as 20 percent disabling; and (iv) chronic gastritis, evaluated as 10 percent disabling. The Veteran has a combined rating of 60 percent, effective from March 15, 2007. The Board also notes that disabilities of the bilateral legs, low back, and the Veteran's gastritis all share a common etiology, as they stem directly from the service-connected bilateral femoral neck stress fractures. Therefore, because all of these disabilities stem directly from the same etiology, they are considered one disability under 38 C.F.R. § 4.16(a) for the purposes of considering entitlement to TDIU. Using the bilateral factor, they result in a combined disability rating of 60 percent under section 4.25 as of March 15, 2007, the effective date of the 20 percent rating assigned to the Veteran's service-connected low back disability. Thus, the schedular criteria for the disabilities resulting from the service-connected bilateral femoral neck stress fractures have been met since March 15, 2007. The Veteran filed for TDIU in July 2007. As such, the schedular criteria have been met throughout the pendency of this appeal. 38 C.F.R. § 4.16(a) (2013). With the schedular criteria met for a TDIU, the Board must next determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. Turning to the evidence in the instant case, the evidence indicates that the Veteran last worked full-time in November 2006 as a teacher and decoration consultant. In a December 2006 psychiatric report, a private psychiatrist stated that the Veteran was "totally and completely disabled to work." The psychiatrist stated that the Veteran's hip pain, femur pain, and hernia affected him emotionally, and as a result "both conditions" disabled him "to be sitting or standing during a long period of time." In a February 2007 note from the Commonwealth of Puerto Rico Retirement System for Teachers indicates that the "examiner doctor of the system certifies that [the Veteran] is disabled." A March 2007 note from A.M.C.M., the Veteran's former School Director, accepted the Veteran's resignation from his teaching position effective March 2, 2007. In July 2007, the Veteran's sister stated that the Veteran experienced hip pain and depression, and that he spent almost all day in bed. In July 2007, A.M.C.M. stated that the Veteran worked under her direction for more than 12 years. Since 2006, A.M.C.M. observed that the Veteran began to be absent from school as a result of "legs, anxiety, depression, and high-pressure." A.M.C.M. stated that the Veteran was an excellent teacher, but he was not the same person since 2006. A.M.C.M. stated that the Veteran's leg pain did not allow him to be on his feet or sitting. In an undated statement, J.P.S., a decoration consultant, indicated that the Veteran worked for his company as a seller and assistant decoration consultant until 2006, when the Veteran began to "feel ill from his legs and then he fell into depression." J.P.S. stated that the Veteran had been one of his best sellers and specialists, but the Veteran could no longer work because he could not move well or stand for long periods of time. J.P.S. added that the Veteran could not drive because he crashed his car as a result of his condition. In July 2007, Dr. I.R.C. stated that the Veteran could not stand for long periods of time, and his medications did not completely relieve his pain. Dr. I.R.C. noted that the Veteran crashed his car. Dr. I.R.C. stated that the Veteran could not work because "his conditions" did not allow him to. In July 2007, the Veteran stated that he could not work. The Veteran stated that he could not drive a car or engage in "regular activities." The Veteran indicated that he spent the majority of his time in bed. The Veteran stated that he retired from his job because his "depression made me . . . absent from school a lot." In his July 2007 Application for Increased Compensation Based on Unemployability, the Veteran stated that he was unemployable as a result of residual femoral neck stress, fractures and pain in his legs, residual pain in his spine, and depression. The Veteran stated that he completed four years of college and had begun a Master's Degree program in "General Curriculum." The Veteran underwent a VA examination addressing his gastritis in July 2007. The examiner noted that there was no evidence of gastric complaints or visits to his primary care physician since September 2006. The examiner noted that the Veteran had previously worked as an English teacher and a vendor of home interiors, and he retired in January 2007 due to depression. The examiner noted that the Veteran's gastritis would not affect the Veteran's activities of daily living or his occupation. In a February 2009 psychiatric evaluation for the purpose of determining continuing disability for the Retirement System for Teachers, a physician diagnosed the Veteran with severe recurrent major depression, hypertension, hyperthyroidism, esophagitis, osteoarthritis, and hiatal hernia. The physician stated that the Veteran was unable to perform as a teacher, and he was totally and completely disabled. The Veteran underwent a VA examination in October 2009. The examiner noted that the Veteran was last employed as a teacher in 2006, and the examiner noted that the Veteran retired as a result of psychiatric issues, specifically depression and anxiety. The Veteran underwent a VA examination in April 2011. The examiner noted that the Veteran retired in 2006 as a result of physical problems, including hip pain and sacroiliac pain. The examiner noted that the Veteran's bilateral hip stress fractures and bilateral hip degenerative changes would cause significant effects on the Veteran's occupation in the form of decreased mobility and pain, which would result in increased absenteeism. With respect to the Veteran's lumbosacral spine disability, the examiner diagnosed the Veteran with sacroiliitis, which would result in increased absenteeism because of decreased mobility and pain. Pursuant to the Board's August 2013 Remand, the Veteran underwent a VA examination addressing each of his service-connected disabilities in August 2013. The examiner opined that though the Veteran's hip, lumbosacral spine, and gastritis disabilities would affect his ability to work, the Veteran was at least as likely as not employable. The examiner noted that the Veteran could work at sedentary jobs such as his previous job as a teacher. Further, the examiner noted that the Veteran indicated that he had a Master's degree in Business administration. The examiner concluded that the Veteran should not lift and carry more than 15 pound objects, should not work at strenuous, physically demanding jobs, and should be allowed to sit or stand on his job as needed. Furthermore, the Veteran should always have gastritis medication nearby to avoid an exacerbation of symptoms. Applying the law to the facts of this case, the Board acknowledges that the record contains a number of opinions attesting to the Veteran's inability to work. The Board must also note, however, that these opinions consider the effects of the Veteran's non-service-connected psychiatric disability on his ability to engage in substantially gainful employment. Indeed, lay and medical statements from 2006 and 2007 generally cite the Veteran's non-service connected anxiety and depression as the primary reason for the Veteran's inability to work. Indeed, in July 2007, the Veteran himself stated that depression caused him to be frequently absent from his teaching position. The Board places little probative weight in the medical opinions of record that find the Veteran to be unable to engage in substantially gainful employment with consideration given to the Veteran's non-service-connected psychiatric conditions. Furthermore, as the Board noted in its August 2013 Remand, while the April 2011 VA examiner appeared to consider only the Veteran's service-connected disabilities on his employability, the examiner did not address whether the Veteran's service-connected disabilities alone rendered the Veteran incapable of gainful employment. Contrarily, the August 2013 examiner found the Veteran to be capable of substantially gainful employment upon consideration only of the Veteran's service-connected disabilities. The Board places great probative weight on the findings of this examiner because it followed a thorough physical examination of the Veteran, consideration of the Veteran's statements, and consideration only of the Veteran's service-connected disabilities. The Board acknowledges the contentions of the Veteran that he is unable to work due to his service-connected disabilities. Laypersons can attest to factual matters of which they had first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report what he perceives through his senses, such as pain, he does not have medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, the Veteran's descriptions of the physical difficulties caused by his service-connected disabilities are competent and have some probative value. The Board must find such probative value to be substantially limited, however, given that the Veteran's complaints also refer extensively to nonservice-connected psychiatric symptoms. Thus, the majority of lay assertions of record provide little guidance in distinguishing to what degree the Veteran's limitations are a result of his service-connected disabilities and to what degree those limitations are attributable to nonservice-connected disabilities, particularly his psychiatric difficulties. Additionally, while the Board is sympathetic to the difficulties that the Veteran faces, the Veteran's combined 60 percent rating currently in effect for his disabilities already contemplates severe industrial impairment. Thus, while the Board has considered the lay contentions of the Veteran's total inability to work, the Board has placed greater probative weight on the findings of clinician that the Veteran is not precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. As the preponderance of the evidence is against the Veteran's claim for a TDIU, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER A TDIU is denied. ____________________________________________ Lesley A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs