Citation Nr: 1342916 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-07 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1994 to November 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This claim was remanded by the Board in August 2011 for further development. Further development has been accomplished and the matter has been returned for appellate review. In a November 2011 statement, the Veteran argued her bilateral knee disabilities are more severe than currently rated. The Board denied the claims for increased rating in an August 2011 decision. The issues of entitlement to increased ratings for service-connected right and left knee disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of TDIU are not met, and the evidence does not warrant referral for consideration of a TDIU on an extra-schedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duty to notify was satisfied via a letter sent to the appellant in January 2012and the claim was adjudicated in a June 2012 supplemental statement of the case. The duty to assist has also been satisfied. VA has obtained the Veteran's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Veteran was also afforded a VA examination in November 2011. The VA examination is sufficient, as it considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to resolve the issue on appeal. The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on her claim for TDIU at this time. II. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability, as will disabilities of common etiology. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his or her age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is VA's policy 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(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). III. Analysis In this case, the Board finds that at no time during the pendency of the appeal has a TDIU been warranted. First, the Veteran has not met the scheduler criteria for TDIU listed in 38 C.F.R. § 4.16(a) because she does not have a service-connected disability rated as at least 60 percent disabling, or at least one service-connected disability rated as at least 40 percent or more and a combined evaluation for compensation of at least 70 percent disabling. Service connection is in effect for patellofemoral syndrome, right and left knees, each evaluated as 10 percent disabling. The Board has also considered whether the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). The issue is whether the Veteran is unable to follow a substantially gainful occupation as a result of a service-connected disability, not whether the Veteran can find employment. Van Hoose, 4 Vet. App. at 361. In November 2011, the Veteran submitted a statement indicated that it is "very difficult to perform the duties of daily living as a spouse and parent when [her] knees lock-up due to intense pain." The Veteran indicated that she is sometimes "rendered completely immobile and [has] to depend on someone else to do what once were simple tasks for [her]." The Veteran indicated that she cannot kneel, work-out, go up and down stairs in her home or stand for long periods of time. During a November 2011 VA examination, the Veteran reported that she worked full time for approximately 10 years as a hair stylist after separation from service, but that she had to work part-time from November 2009 to November 2010 because of her chronic knee pain. In November 2010, the Veteran reported that she stopped working to complete her college degree. The Veteran noted that she finished a degree in business management and that she was going to start working on her master's degree in January 2012. The Veteran indicated that she had done temporary book keeping and accounting work lasting from a week to a month part-time. The Veteran indicated that she was able to do only sedentary work because of her knee pain. The Veteran reported that she cannot stand for more than 10 to 15 minutes before she has to sit down, and that she has to keep her legs elevated while sitting. The Veteran noted that she is 5' 2" and that most chairs cause her legs to hang, preventing her from stretching her legs out, unless she has a stool. The Veteran indicated that her flare-ups last a day until she is able to stand, elevate her legs, or change her chair. The examiner indicated that the Veteran was not currently employed, but that the Veteran's service-connected disabilities did not prevent her from securing or following a substantially gainful occupation. The examiner explained that the Veteran's knee condition prevents her from doing any kind of physical employment, but that she is able to do sedentary employment if she has an ergonomically correct desk. Although the Veteran contends that her service-connected disabilities preclude employment, the Board finds that the evidence weighs against the claim. The November 2011 VA examiner indicated that the Veteran's service-connected disabilities alone do not preclude employment; she is able to do sedentary work. The Veteran has also indicated that she went back to school because she wanted to transition into a sedentary occupation. While the Veteran indicates that she has difficulty stretching her knees because some office chairs prevent her feet from touching the ground, the November 2011 examiner indicated that an ergonomically correct desk would allow the Veteran to do sedentary work. In her February 2008 substantive appeal, the Veteran stated that she wanted to "go back to school and seek a degree in a profession that will not call for me to be constantly on my feet or cause any stress or strain on my knees." During her November 2011 VA examination, the Veteran indicated that she completed a bachelor's degree in business management and she was going to start a master's degree. The record also reflects that the Veteran has experience working on temporary assignments in book keeping and accounting. The Board notes that the mere fact that the Veteran's disabilities have an effect on her employment is not sufficient to find that she is entitled to TDIU. In order to warrant TDIU, the evidence of record must reflect that the Veteran is unable to secure and follow a substantially gainful occupation consistent with her education and occupational experience by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b). The record reflects that the Veteran stopped working, at least in part, because she wanted to pursue her college degree so that she could transition into a sedentary occupation. The Board finds that the evidence of record, as noted above, does not support a finding that the Veteran is unable to maintain substantial gainful employment solely due to her service-connected disabilities. The Veteran's ratings are recognition that the impairment may make it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment consistent with her education and occupational experience. Van Hoose, 4 Vet. App. at 361. In making its determination, the Board has considered the Veteran's claims file, to include the VA examination, the Veteran's statements, and the Veteran's education and employment history. The record does not reflect that the Veteran's service-connected disabilities prevent her from obtaining sedentary employment. The Board finds that referral to the Director, Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. The preponderance of the evidence is against the Veteran's contention that her service-connected disabilities are of such severity as to preclude her participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert . v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs