Citation Nr: 1343477 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-36 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 RO decision, which denied entitlement to TDIU. In December 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for further development. The Veteran's Virtual VA file was reviewed in connection with this decision. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter in February 2010 fully satisfied the duty to notify provisions with respect to the TDIU claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran appropriate VA examinations in July 2009, June 2012, and January 2013. The VA examination reports are thorough and supported by outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to determine the Veteran's entitlement to TDIU. The examinations also discussed the impact of the Veteran's disabilities on the Veteran's occupation and daily living. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Board finds the examination reports to be thorough and supported by the other evidence of record. There is no rule as to how current an examination must be, and the Board concludes the examinations in this case are adequate upon which to base a decision in that they were performed by a neutral, skilled provider who accurately recited the Veteran's history and the examiner's resulting report provides the data required to appropriately rate the Veteran's disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, based on the aforementioned January 2013 VA examination, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). As was just discussed above, TDIU may be awarded on a schedular or extraschedular basis. In this case only the schedular basis need be considered. The Veteran is currently in receipt of service connection for urinary incontinence, residuals of prostate cancer, rated as 60 percent, and erectile dysfunction, rated as noncompensable. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2013). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the preponderance of competent evidence of record is against a finding that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. The Veteran asserts that he avoids others because of his service-connected residuals of prostate cancer. He contends that he cannot perform any duties that require any straining because that would cause him to leak urine. He does not feel comfortable being around others because he is always afraid that he will have an accident and others will smell his urine. The Veteran contends that no employer would put up with him having to go to the bathroom so frequently to change his pad or to check for urine. On the Veteran's VA form 21-8940 submitted in January 2010, the Veteran reported that his prior occupation was carpenter, and he last worked in 2002. He stated that he had completed four years of high school and had not had any other type of education or training. The Veteran underwent a VA genitourinary examination in July 2009. The examiner noted that the Veteran was retired and there were no current adverse occupational implications imposed on any job from the genitourinary standpoint. In June 2012, the Veteran underwent a VA examination with regard to his claim for entitlement to TDIU. The examiner determined that the Veteran's prostate cancer did not impact his ability to work. The examiner went on to note that the Veteran reported no significant changes in voiding or erectile dysfunction since his last rating. The examiner found that heavy physical work situations would prove difficult due to stress incontinence issues, and sedentary work situations would be possible with bathroom access. The examiner noted that the Veteran has not worked as a carpenter since 2003, and his prostate cancer was diagnosed in 2007. On VA examination in January 2013, the examiner noted that the Veteran's prostate cancer was in remission. He had previously undergone radical prostatectomy in June 2007. The Veteran had a voiding dysfunction which required the wearing of absorbent material which must be changed more than four times per day. The examiner indicated that the Veteran's daytime voiding interval was between one and two hours, and at nighttime, he awoke to void two times. The Veteran also suffered from erectile dysfunction. Concerning employability, the examiner wrote that the Veteran had a leakage problem which would be worsened by heavy lifting. It was noted that the Veteran had worked for 32 years as a carpenter before retiring in 2003. The examiner indicated that if the Veteran were to return to work, he would need unlimited bathroom breaks to change his pads as needed; otherwise, he should be capable of at least light levels of activity. After considering all of the evidence, the Board concludes that the evidence does not show that the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. While the evidence may show that his residuals of prostate cancer (to include his voiding disorder) and erectile dysfunction disabilities might limit the Veteran to less rigorous or more sedentary employment, this is insufficient by itself to show that his service-connected disabilities preclude all forms of substantially gainful employment. None of the medical evidence of record shows that the Veteran is unemployable. Rather, each of the three VA medical opinions of record found that the Veteran is not precluded from all types of employment because of his service-connected disabilities. In particular, the July 2009 VA examiner opined that there were no current adverse occupational implications imposed on any job from the genitourinary standpoint. Both the June 2012 and January 2013 VA examiners concluded that the Veteran's disabilities did not completely prevent him from engaging in all employment; further, both examiners concluded that while the Veteran's voiding dysfunction and need to change his pads would impact the Veteran's ability to perform a job, neither examiner found that the Veteran's disabilities completely prevented him from engaging in all employment. The Board has considered the Veteran's self-report that his educational background consists of high school, and that he had only worked as a carpenter; this evidence suggests that the Veteran has not been trained with skills for more sedentary occupation. That being said, the July 2009, June 2012, and January 2013 VA examiners concluded that the Veteran's disabilities did not completely prevent him from engaging in all employment. Even taking into account his work experience and education level, the medical evidence of record demonstrates that despite the severity of his genitourinary disabilities, the Veteran is still able to perform various tasks, albeit ones that are less physically strenuous in nature. The Board has considered, and is sympathetic to, the Veteran's assertions that his service-connected disabilities interfere with his ability to obtain employment. While the Veteran is competent to attest to how his service-connected disabilities interfere with his ability to be employed, the record contains three VA medical opinions that provide that the Veteran is capable of employment of less physical or rigorous activities. Though the Veteran's opinion that he is unemployable is entitled to some probative value, that opinion is far outweighed by the evidence of record, which demonstrates that the severity of the Veteran's disabilities does not preclude him from participating in less rigorous physical activities. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The record does not indicate that the Veteran's disabilities preclude him from obtaining or sustaining substantially gainful employment. The recent evidence of record does not show that an award of TDIU should be granted based on the history of the disabilities. See 38 C.F.R. §§ 3.340(a)(3). The weight of competent evidence of record that is against a finding of TDIU based on the Veteran's service-connected disabilities. The benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, a total disability rating based upon individual unemployability due to service-connected disabilities under the provisions of 38 C.F.R. § 4.16(b) is not warranted. ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs