Citation Nr: 1537870 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 08-14 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.L. Puchnick, Counsel INTRODUCTION The Veteran (who is the appellant in this case) served on active duty from November 1972 to November 1974. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2009 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a hearing at the Board in May 2012 before an Acting Veterans Law Judge (VLJ) who is no longer employed with the Board. An August 2014 letter informed the Veteran of this fact and afforded him the opportunity to have another hearing before a different Veterans Law Judge. The Veteran's representative indicated the Veteran elected not to have another hearing. In an October 2014 decision, the Board denied the Veteran's claim for a TDIU, which had previously been remanded in July 2013. The 2014 Board decision also denied five claims for service connection and one claim for an increased rating. The Veteran appealed the seven aforementioned claims to the U.S. Court of Appeals for Veterans Claims (Court). In July 2015, VA's General Counsel and the Veteran (through his attorney) filed a Joint Motion for Partial Remand (JMPR) only with respect to the claim for a TDIU. The parties agreed to dismiss the remaining issues. By an Order dated in that same month, the Court granted the JMPR. FINDINGS OF FACT 1. Service connection is in effect for two disabilities: (1) right knee strain, rated 20 percent disabling from March 16, 2010; and (2) acromioclavicular (shoulder) degenerative joint disease (DJD), rated as noncompensable (zero percent) disabling from April 24, 2006, 10 percent disabling from October 9, 2007, and 20 percent disabling from May 23, 2011. The combined schedular rating is zero percent from April 24, 2006, 10 percent from October 9, 2007, 30 percent from March 16, 2010, and 40 percent from May 23, 2011. 2. The Veteran completed four years of college, and has work experience as an electronic mechanic. He last worked in January 2006. 3. The most probative evidence demonstrates that the Veteran's service-connected disabilities are not so severe as to prevent him from engaging in substantially gainful employment consistent with his level of education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that VA's duty to notify has been more than satisfied. The Veteran was notified on multiple occasions of the criteria for establishing entitlement to a TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. As for the duty to assist, the Veteran's service treatment records (STRs) have been obtained. Pertinent post-service medical records have been obtained, to the extent available. As such, the Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in May 2007, November 2011, January 2012, and December 2013. The Board finds the examination reports of record to be adequate, as the examiners had a full and accurate knowledge of the Veteran's disabilities and symptoms and grounded the findings in the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist has been met. See 38 C.F.R. § 3.159(c)(4) (2015). 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). VA, and specifically the Board, also complied with its duties during the 2012 hearing. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the 2012 hearing, the Acting VLJ addressed the issue on appeal, specifically, the current impairment the Veteran's service-connected disabilities placed on the Veteran's activities of daily living as well as employability. Testimony was provided by both the Veteran and (with respect to the effect of the Veteran's activities of daily living) the Veteran's wife. The Veteran was also asked questions to determine whether additional relevant evidence existed that had not been obtained, such as whether he had recently received any treatment. He was also asked whether he would report for current VA examination. As a result, additional records and VA examinations were subsequently obtained through the Board's July 2013 remand. There is no indication that the Veteran was prejudiced in any way by the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. Accordingly, all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103. Therefore, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Standard of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet. App. at 56. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's electronic VA files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf. 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, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). III. Pertinent Evidence A September 1994 patient history from James E. Newby, II, M.D., indicated that the Veteran had a college education. In a "Patient Information Sheet" completed in November 1998, the Veteran indicated that he worked for NSGA Northwest as a food service worker. March 2005 evaluation by Witold A. Turkiewicz, M.D., noted problems including fusion of the sacroiliac joints and findings of seronegative spondyloarthropathy based upon X-ray findings. The Veteran presented with complaints of difficulty at work going up and down ladders and working on the ship because of limitation of motion of the spine. The assessment was decreased range of motion and measurements for spondyloarthropathy, which "makes it difficult for [the Veteran] to work." In an October 2005 letter to the Norfolk Naval Shipyard, Dr. Newby related he had treated the Veteran for cervical spine ankylosing spondylitis since 1994. He opined that the Veteran "is now unable to perform his job because of the disabling feature of his neck spine disease." Dr. Newby concluded "It is my professional recommendation, based on his disabling condition, that he be retired on medical disability." In May 2007, the Veteran reported for a VA contract examination by Richard A. Stoermann, DO, MS. He was diagnosed with acromioclavicular DJD of the right shoulder and ankylosis spondylitis of the neck and low back. The examiner opined that the conditions "only minimally affect the claimant's ability to perform his or her usual occupation and daily activities." In June 2009, the Veteran submitted an informal TDIU claim stating "I can not work because of my bilateral shoulder condition." The Veteran submitted his formal claim for a TDIU rating in September 2009. He reported he had work experience as an electronic mechanic for the Norfolk Naval Shipyard and that he had last worked in January 2006. He stated he completed four years of college. A VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received in October 2009, was completed by the Lead Financial Technician of the Norfolk Naval Shipyard. She stated that the Veteran last worked in December 2005 as an electrical mechanic for 40 hours per week, that he was removed in January 2006, and he was not entitled to receive sick, retirement, or other benefits. Received with said form was a "Lost Wage Statement" indicating leave used from January 2005 to January 2006. The Veteran used 336.0 hours of leave, but the payroll office could not verify that all leave was used due to disability. The Veteran was evaluated in October 2009 by Felix M. Kirven, M.D., for complaints of right shoulder, low back, and neck pain. The impression was lumbar lumbago with ankylosing spondylitis, ankylosing cervical spondylitis with spondylosis, and rotator cuff tear. Dr. Kirven stated that the Veteran "is 100% disabled secondary to his spondylitis." During evaluation by Harvey L. Nissman, M.D., in May 2011 for traumatic brain injury (TBI), reported history included the Veteran's receipt of a Bachelor of Science in Electronic Technology, as well as notes that he had worked for the Federal government for 31 years before retiring "due to his multiple medical problems" and that he had not worked since then. Upon his VA Form 9 received in June 2011, the Veteran stated "Because of the pain in my arm and shoulders can't lift heavy weight, bending and standing on my foot and legs for a long period of time. A 100% disability." On VA examination of the right knee in November 2011, the diagnosis was right knee strain. It was noted that its impact on the Veteran's ability to work was that he had problems bending and putting on his clothes and shoes. Upon VA examination in January 2012, the Veteran was diagnosed with a right ankle sprain occurring in 1973. The examiner indicated that the Veteran's non-service-connected ankle condition impacted his ability to work. He opined that the Veteran's knee effusion (diagnosed in 1972) impacted his ability to work, in that the knee affected the Veteran's bending and resulted in a problem putting on his clothes and shoes. The same examiner found that the Veteran's non-service-connected right foot contusion (diagnosed in 1987) did not impact the Veteran's ability to work. He also concluded that the Veteran's back, right shoulder, knee, and ankle prevented him from being able to continue to work. During his May 2012 hearing, the Veteran testified that he could not work above his head, push or pull a heavy object due to his service-connected shoulder disability. He testified that one of the reasons that he left his job at the Navy Yard was due to his shoulder condition. The Veteran's attorney explained that with regard to the Veteran's claim for entitlement to a TDIU rating, "it is our contention that the conditions that the other orthopedic [other than the Veteran's service-connected right knee and right shoulder disabilities] conditions will be service connected and that those in a whole and combined will provide entitlement to the issue of individual unemployability." In December 2013, the VA examiner provided opinions regarding the Veteran's various disabilities. She reiterated she reviewed the claims folder, Virtual VA records and private medical records, to include those from Dr. Kirven. It was initially noted the Veteran "medically" retired. He stated it was due to "a lot of problems, my neck, ankles, legs, back, shoulders." He indicated he "just couldn't do the work anymore." The examiner noted she reviewed the record and VA medical records. The examiner stated the Veteran's shoulder condition resulted in mild functional limitation. The diagnoses included DJD/rotator cuff tear of the right shoulder. The examiner noted that the Veteran "went on to work a laborious job after separation from service with no documented right shoulder limitation until after 1998" and the Veteran's current shoulder disability was most likely part and parcel of ankylosing spondylitis. She opined that the Veteran's shoulder condition did not impact his ability to work. The examiner concluded that the Veteran was capable of sedentary to light employment due to his service-connected disabilities. IV. Applicable Law VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that by reason of service-connected disability the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 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). It is the established policy of VA that all Veterans who are unable to pursue a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). 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). In determining whether appellant is entitled to a TDIU rating neither the appellant's non-service-connected disabilities, nor advancing age, may be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this instance, service connection has been established for two disabilities: (1) right knee strain, rated 20 percent disabling from March 16, 2010; and (2) acromioclavicular degenerative joint disease, rated as noncompensable (zero percent) disabling from April 24, 2006, 10 percent disabling from October 9, 2007, and 20 percent disabling from May 23, 2011. The combined schedular rating is zero percent from April 24, 2006, 10 percent from October 9, 2007, 30 percent from March 16, 2010, and 40 percent from May 23, 2011. Although the Veteran's service-connected disabilities do not meet the threshold percentage requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether his service-connected disabilities preclude him from engaging in substantially gainful employment on an extra-schedular basis. See 38 C.F.R. § 4.16(b). Under this regulation, Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration under 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). In order to grant TDIU in this case, the record must reflect that circumstances, apart from non-service-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. In Moore, 1 Vet. App. at 359, the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. A veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the Veteran. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2015). Applicable regulations place responsibility for the ultimate total disability rating based on individual unemployability determination on VA, not a medical examiner. Accordingly, it is now clear that the ultimate issue of whether total disability rating based on individual unemployability should be awarded is not a medical issue, but is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). V. Analysis The Board, upon review of the record, finds that the pertinent evidence does not demonstrate that any service-connected disability (or combination thereof) prevents the Veteran from securing or maintaining substantially-gainful employment. Indeed, while the Veteran's June 2009 informal TDIU claim stated that he could not work because of his service-connected shoulder condition, and his June 2011 VA Form 9 indicated that he was "100%" disabled, during his May 2012 hearing the Veteran testified that one of the reasons that he left his job at the Navy Yard was due to his shoulder condition. Notably, counsel explained that, with regard to the Veteran's claim for entitlement to a TDIU rating, "it is our contention that the conditions that the other orthopedic [other than the Veteran's service-connected right knee and right shoulder disabilities] conditions will be service connected and that those in a whole and combined will provide entitlement to the issue of individual unemployability." The Veteran did not, at the time of the hearing or subsequent thereto, contradict either his testimony or his attorney's statements. Finally, during December 2013 VA evaluation, the Veteran stated that he was retired due to "a lot of problems, my neck, ankles, legs, back, shoulders." The foregoing clearly do not show that the Veteran was unemployed or unemployable due solely to service-connected disabilities. Concerning the medical evidence of record, the Board initially notes that the March 2005 evaluation by Dr. Turkiewicz found that limitation of motion of the spine made it difficult for the Veteran to work. The Board notes that while Dr. Newby recommended in October 2005 that the Veteran should retire due to his non-service-connected cervical spine ankylosing spondylitis, he did not mention the Veteran's service-connected disabilities. In May 2007, Dr. Stoermann found that the Veteran's acromioclavicular DJD of the right shoulder and non-service-connected ankylosis spondylitis of the neck and low back "only minimally affect the claimant's ability to perform his or her usual occupation and daily activities." Following October 2009 evaluation by Dr, Kirven, the impression was lumbar lumbago with ankylosing spondylitis, ankylosing cervical spondylitis with spondylosis, and rotator cuff tear. Dr. Kirven opined that the Veteran "is 100% disabled secondary to his [non-service-connected] spondylitis." Notes from Dr. Nissman's May 2011 evaluation indicated that the Veteran retired due to "multiple" medical problems. While the Veteran's service-connected right knee was examined in November 2011, the VA examiner found the impact on the Veteran's ability to work was that he had problems bending and dressing. Upon January 2012 examination, the VA examiner concluded that the Veteran's service-connected right shoulder and knee disabilities, as well as his non-service connected back and ankle disabilities, prevented him from being unable to continue to work. Finally, during December 2013 VA evaluation, the examiner found that the Veteran's shoulder condition did not impact his ability to work, but rather resulted in mild functional limitations. She concluded that the Veteran was capable of sedentary to light employment due to his service-connected disabilities. Quite simply, there is nothing in the clinical record suggesting that the combined effects of the Veteran's service-connected right knee and right shoulder disabilities preclude all forms of substantially-gainful employment. The issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). While the Board is cognizant that the Veteran may have difficulty working in a physical capacity, the preponderance of the evidence of record demonstrates that the Veteran is not precluded from securing and following substantially-gainful sedentary employment due to the service-connected conditions. While the evidence suggests that he spent most of his career in electronics, a more labor-intensive field, he should be well qualified for sedentary work given his educational background of having completed four years of college. Although much of the Veteran's prior jobs involved physical activities, the Board believes that the Veteran is still capable of sedentary jobs consistent with his level of educational attainment when considering only that level of impairment resulting from service-connected conditions. Again, the issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose, 4 Vet. App. at 363. He remains capable when only the service-connected conditions are considered; it is only when viewing his physical abilities in the context of nonservice-connected conditions (particularly the back and neck), that the medical professionals have concluded he cannot work. Accordingly, the Board finds that the Veteran's service-connected disabilities are not so disabling for occupational impairment as to warrant referral for consideration of an extraschedular TDIU rating. His own expressions of belief that he is incapable of working are self-serving, and contradicted by the medical evidence of record. The Board concludes that the medical findings are of greater probative value than the Veteran's opinions regarding his inability to work due to service-connected disabilities. For these reasons, the Board finds that the weight of the credible evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. The Board finds, based on the preponderance of the evidence of record, that the Veteran's service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment of a sedentary nature consistent with his educational background and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a TDIU is denied. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs