Citation Nr: 1603209 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 07-36 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based on individual unemployability for compensation purposes (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to July 1982 and from July 1983 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for residuals of cold injury to the lips and face and assigned an initial rating of 10 percent, effective November 20, 1998. The Veteran disagreed with the initial rating assigned for this service-connected disability. In September 2014, the Board granted a 20 percent rating for residuals of cold injury to the nose; and a separate rating for residuals of cold injury to the lips, with a 20 percent rating from August 18, 2009 to January 17, 2012 and a 30 percent rating from January 18, 2012. The Board also remanded a TDIU issue as part of the initial rating claim. To that effect, the Court has held that entitlement to a TDIU is an element of initial ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). If the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice, 22 Vet. App. 55. Therefore, the rating period for consideration on appeal as to the issue of TDIU is from November 20, 1998, pursuant to the holding in Rice. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2009. A transcript of that hearing is associated with the claims file. FINDING OF FACT The evidence of record does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in October 2014 satisfied the duty to notify provisions with respect to a TDIU, and notified the Veteran of the regulations pertinent to the establishment of an effective date in the event of award of the benefit sought. The Board concludes that VA's duty to assist has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, VA medical treatment records, Social Security Administration (SSA) records, and identified private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided with VA examinations to assess the severity of all his service-connected disabilities in April and May 2015; and an addendum medical opinion was obtained as to the effect of the service-connected disabilities on his employability. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds these VA examinations and addendum opinion to be adequate, as the examiners reviewed the history of each of the Veteran's disabilities, conducted a clinical examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his service-connected disabilities to properly decide of the issue of TDIU. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). If there is only one disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From November 20, 1998 to May 19, 2005, service connection was in effect for post-operative tenosynovectomy of the right ring finger, evaluated as 10 percent disabling; and cold injury residuals of lips and face, evaluated as 10 percent disabling. The combined rating for compensation was 20 percent. From May 20, 2005 to December 6, 2006, service connection was in effect for post-operative tenosynovectomy of the right ring finger, evaluated as 10 percent disabling; cold injury residuals of lips and face, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and mixed hearing impairment with right ear otorrhea, evaluated as noncompensable (chronic right ear otorrhea was separately evaluated as 10 percent disabling from December 27, 2005). The combined rating for compensation was 30 percent. From December 7, 2006 to August 17, 2009, service connection was in effect for post-operative tenosynovectomy of the right ring finger, evaluated as 10 percent disabling; cold injury of the lips, evaluated as 10 percent disabling; cold injury of the nose, evaluated as 10 percent disabling; cold injury of the ears, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; mixed hearing impairment, evaluated as noncompensable; and chronic right ear otorrhea, evaluated as 10 percent disabling. The combined rating for compensation was 50 percent. From August 18, 2009 to May 21, 2015, service connection was in effect for post-operative tenosynovectomy of the right ring finger, evaluated as 10 percent disabling; cold injury of the lips, evaluated as 20 percent disabling; cold injury of the nose, evaluated as 20 percent disabling; cold injury of the ears, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; mixed hearing impairment, evaluated as noncompensable; and chronic right ear otorrhea, evaluated as 10 percent disabling prior to June 7, 2012 and as noncompensable from June 7, 2012. The combined rating for compensation was 60 percent. From May 22, 2015, service connection has been in effect for post-operative tenosynovectomy of the right ring finger, evaluated as 10 percent disabling; cold injury of the lips, evaluated as 20 percent disabling; cold injury of the nose, evaluated as 20 percent disabling; cold injury of the ears, evaluated as 10 percent disabling; and chronic right ear otorrhea with tinnitus and vertigo, evaluated as 60 percent disabling. The combined rating for compensation was 80 percent. As such, the Veteran did not meet the minimum schedular criteria for a TDIU, prior to May 22, 2015. 38 C.F.R. § 4.16(a). From May 22, 2015, the schedular criteria for a TDIU are met. However, for the Veteran to prevail on his claim for TDIU, the record must reflect that he is precluded from engaging in substantially gainful employment consistent with his education and occupational experience, due solely to his service-connected disabilities. The sole fact that the Veteran claimant is unemployed or has difficulty obtaining or following 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 she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). Here, on his TDIU application (VA Form 21-8940) dated July 2015, the Veteran indicated that his service-connected right ear, hand, and frostbite disabilities prevented him from securing or following any substantially gainful occupation. The Veteran stated that his disability affected his full time employment since August 1998 and he last worked full-time as a cook in November 2003; he became too disabled to work in November 2004. He also indicated that he had 11th grade education and one year of college education. Regarding his employment history, the Veteran reported that he worked 40 hours per week from September 1999 to January 2003 (with a total of 46 days lost from illness) and 28 hours per week from February 2003 to July 2003 (3 days lost from illness) as a production laborer; and 40 hours per week from October 2003 to December 2003 (6 days lost from illness) and 30 hours per week from December 2003 to January 2004 (no time lost from illness) as a cook. In a March 2002 SSA Work History Report, the Veteran indicated that he worked in manufacturing as a machine operator from May 1999 to April 2001 (30 to 40 hours a week). In the Disability Report, he stated that he worked as machine operator from July 2000 to June 2001. In an August 2007 SSA Work History Report, the Veteran indicated that he worked as a printer from January 2003 to July 2003 (5 days a week, 8 hours a day), as a cook from December 2002 to January 2003 (4 days a week, 7 to 8 hours a day), and as a warehouse clerk from April 2003 to October 2004 (5 days a week, 8 hours a day). A January 1999 VA examination report notes diagnoses of status post frostbite of the hands, face and ear with normal examination of face and ears, and status post surgery tenosynovitis of the right hand with some tenderness but full range of motion. During a February 2005 SSA disability examination, the Veteran stated he was applying for disability because of pain in his back, which began approximately 10 years previously, when he was involved in a motor vehicle collision. Past surgical history included a crush injury to the hands with surgery on his right hand in 1986 and on his left hand in 1999. He also had right knee arthroscopy in 1997 and 4 surgical procedures on his nasal septum. A March 2005 VA treatment report states that about 5 months ago the Veteran hurt his back while lifting something and unlike previous episodes in which he recovered within a week or two, this time the back pain had persisted. He underwent a back surgery involving anterior posterior fusion from L-4 to the sacrum in March 2006. A July 2005 SSA Disability Report reflects that the Veteran developed left leg numbness and increased throbbing in the back around March 2005 and doctor had ordered no work and no lifting; he also reported he had been very depressed and had anxiety attacks. In April 2005, as to the question of what illness, injuries or conditions limited his ability to work, he replied "back injury, I have been diagnosed with spinal injury that will ongo (sic) for the rest of my life. Two hand injuries, both with surgery and my right hand is disabled through VA. Knee surgery and 3 nose surgeries. Frostbite has disabled my hands." He reported that these conditions limited his ability to work in terms of lifting, gripping, outdoor activities (due to frostbite) and his nose was sensitive to cold temperature outdoors. He stated that he stopped working on October 20, 2004 because his back could not take the work anymore. A June 2007 SSA disability determination and transmittal form notes a primary diagnosis of affective/mood disorders and secondary diagnosis of disorders of back (discogenic and degenerative). A June 2007 SSA Decision reflects that the Veteran testified he stopped work on October 21, 2004, worked for only 2 weeks in 2005 and performed no work activity in 2006 and 2007; a review of his earnings record showed minimal earnings in 2005 and no earnings in 2006 and 2007. The SSA determined that from October 21, 2004 through October 31, 2006, the Veteran had the residual functional capacity to perform unskilled sedentary tasks allowing unpredictable breaks and unpredictable absenteeism one day a week. In a July 2007 SSA Disability Report, the Veteran reported that the disabilities of degenerative disc disease of the back, chronic low back pain, depression, right hand numbness and pain, knee problems and hearing problem and loss in the right ear limited his ability to work because he could not stand or sit too long or lift too much, and he needed to lie down during the day. He also stated that he had poor focus and concentration. During an August 2008 VA skin examination, the Veteran complained of a recurrent blister on lips and nose with tingling and burning. He stated that the blisters occurred three or four times per year and only with cold exposure. The examiner stated that the sores were not scarring, but the Veteran complained that they were unsightly and that he took time off from work when they were bad. He noted that he has lost jobs because he would not go to work when he had the blisters. A December 2009 SSA Decision found that the Veteran has not engaged in substantial gainful activity since October 21, 2004, due to severe impairments: degenerative disc disease of the lumbar spine with past 2-level fusion in May 2006, history of crunch injury to the hands with right hand surgery in 1986 and left hand surgery in 1999, history of right knee arthroscopic surgery in 1997, and bilateral hand clubbing. The SSA determined that the Veteran has been unable to perform past relevant work beginning on November 1, 2006. In a July 2010 statement, M.B., the Veteran's previous employer and administrator of the Moose Lodge in the Veteran's hometown, stated that the Veteran had been an employee of the Lodge for the past 22 years-he has worked as a bartender on and off for those 22 years. He stated that the first time the Veteran was hired, he missed approximately 19 days of work within the first six months and they needed to let him go because of his repeated absences. However, he learned about the Veteran's illness. The Veteran would call in sick when marked ulceration would manifest on his lips, especially in the colder months, and discoloration with bloody scabby areas was visible; the Veteran would complain of pain and numbness. M.B. indicated that the Veteran continued to work on a 2 day a week schedule at the Moose Lodge. The employer is understanding of the Veteran's service-connected condition and accommodating of his need for time-off due to the condition. The Veteran's former service comrade, C.M. provided a lay statement reporting that the cold has inhibited the Veteran from having fun outdoors such as ice fishing, hunting, and snowmobiling. VA treatment records dated in September 2010 show that he was evaluated for a right ear surgery. It was noted that the Veteran was active and walked 2 hours a day and climbed stairs frequently throughout the day. He cut woods and pushed a lawn mower for an hour. During a January 2012 VA examination, the Veteran reported pain, cold sensitivity, and numbness in each ear and the nose. The examiner reported that the Veteran's cold injury did not impact his ability to work. In a July 2012 VA mental health note, the Veteran reported as to his vocational status that he was unemployed and receiving SSA disability benefits. He also reported prior history of general laborer in shipping and receiving, as well as work for a moving company. An April 2015 VA Audiology Disability Benefits Questionnaire (DBQ) report notes that the Veteran's hearing loss and tinnitus impact ordinary conditions of daily life, including his ability to work, in regards to his reports that he has difficulty understanding speech in areas of background noise and that tinnitus can be annoying. During May 2015 VA Cold Injury Residuals DBQ, the Veteran reported numbness, pain, and cold sensitivity on his face, ears, lips and nose. The examiner found that the Veteran's cold injury residuals did not impact his ability to work. During a May 2015 VA Hand and Finger Conditions DBQ, the Veteran reported pain and stiffness in the right hand. The diagnosis was right hand strain. Range of motion of the right hand was normal, with 4 out of 5 on muscle strength testing. The examiner found that the Veteran's hand and finger condition did not impact his ability to perform any type of occupational task, such as standing, walking, lifting, sitting, and so on, A May 2015 VA Ear Conditions DBQ report noted the Veteran's history of recurrent cholesteatoma and complaint of daily dizziness and vertigo. He stated that he could not drive. Vertigo occurred more than once weekly and lasted 1 to 24 hours. The examiner found that the Veteran's peripheral vestibular conditions did not impact his ability to work. A May 2015 VA medical opinion stated that the Veteran's service-connected cold injury residuals, otosclerosis (natural progression of service-connected ear disease) and right hand strain limited his ability to perform work in very cold environments, such as outdoors or freezers, and work that requires prolonged fine motor manual skills, such as tool work; however, he could perform other sedentary indoor jobs. After carefully reviewing the pertinent evidence of record, the Board finds that the most probative evidence does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the entire rating period on appeal. In arriving at this conclusion, the Board recognizes that the Veteran's service-connected disabilities have significant impacts on his occupational functioning. To that effect, the May 2015 VA examiner opined that the Veteran's service-connected cold injury residuals, ear disease, and right hand strain limit his ability to perform work in cold environments, such as outdoors and freezers, and work that requires prolonged fine motor manual skills. However, the evidence of record does not show that the Veteran was unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. Significantly, the Veteran's reported employment history, as evidenced by his VA Form 21-8940 and SSA Work History Reports, reflects that he had worked full-time prior to October 21, 2004. Although he reported missing work from illness over those years, the average days that he reported he missed appear to be approximately 1 to 2 days per month, which the Board does not find to be sufficient to affect his ability to maintain employment. The record reflects that he stopped working full-time on October 20, 2004, although he continued to work part-time regularly, at least, up until July 2010. To that effect, the lay statement from M.B. dated July 2010 indicates that the Veteran continued to work on a 2 days per week schedule as a bartender. The Board considered the Veteran's lay statements of record in regard to his service-connected disabilities preventing him from any substantially gainful employment. In this case, the Veteran indicated on his July 2015 VA Form 21-8940 that he became too disabled to work in November 2004 due to his service-connected disabilities. Although a lay person is competent to report observable symptoms he experiences, as a lay person he or she is not competent to provide a medical opinion concerning whether the Veteran is unable to work due to his service-connected disabilities. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the Board finds the Veteran's statements are inconsistent with his earlier statements of record. Concerning this, during a February 2005 SSA disability examination, the Veteran stated he was applying for disability because of pain in his back, which began approximately ten years previously, when he was involved in a motor vehicle collision. In this regard, a March 2005 VA treatment report stated that about 5 months ago the Veteran hurt his back while lifting something and had persisting back pain. On the July 2005 SSA Disability Report, the Veteran stated that a doctor had ordered no work and no lifting in regard to his development of left leg numbness and increased back pain. He underwent a back surgery involving anterior posterior fusion from L-4 to the sacrum in March 2006. Here, the Board finds that the Veteran's statements in the medical records generated contemporaneous with his SSA disability claim are more credible than his current statements on his TDIU application, because self-interest plays a role. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that in weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant); see also See Rucker v. Brown, 10 Vet. App. 67, 73 (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994). In particular, the Veteran stated on the July 2005 SSA Disability Report that he stopped working on October 20, 2004 because his back could not take the work any more. Additionally, it appears that the Veteran has been suffering from various other nonservice-connected conditions. Specifically, medical records from the SSA show that he had a right ankle injury in September 2006. He also had a psychiatric hospitalization for homicidal and suicidal ideation, with a diagnosis was recurrent major depressive disorder, with psychotic features, from July 28, 2007 to August 1, 2007. The June 2007 SSA disability determination and transmittal form notes a primary diagnosis of affective/mood disorders and secondary diagnosis of disorders of back. The December 2009 SSA Decision found that the Veteran was disabled due to severe impairments of degenerative disc disease of the lumbar spine with past 2-level fusion in May 2006, history of crunch injury to the hands with right hand surgery in 1986 and left hand surgery in 1999, history of right knee arthroscopic surgery in 1997, and bilateral hand clubbing. Crucially, the medical evidence of record does not show that the Veteran was unemployable by reason of his service-connected disabilities. Specifically, the May 2015 VA examiner opined that considering the Veteran 's service-connected cold injury residuals, otosclerosis (natural progression of service-connected ear disease) and right hand strain, while he was limited in the ability to perform work in very cold environments and work that required prolonged fine motor manual skills, he could perform other sedentary indoor jobs. The Board attaches significant probative value to the May 2015 VA examiner's opinion, because it was rendered by a physician who thoroughly reviewed the Veteran's claims file and conducted a comprehensive clinical examination of the Veteran. There is no contradicting medical opinion of record, and it is consistent with the other clinical evidence of record. In this regard, the June 2007 SSA Decision determined that from October 21, 2004 through October 31, 2006, the Veteran had the residual functional capacity to perform unskilled sedentary tasks allowing unpredictable breaks and unpredictable absenteeism one day a week, although this Decision does not differentiate the impairment caused by the Veteran's service-connected disabilities from his nonservice-connected disabilities. As such, the most probative evidence of record does not establish that the Veteran was unable to secure or follow substantially gainful employment, consistent with his educational and occupational experience, due to his service-connected disabilities. The Board notes that the Veteran has a high school and one year of college education. Although the record reflects that the Veteran's work history involved physical occupational settings, the file contains no evidence that the Veteran would be unable to secure and maintain substantially gainful sedentary employment. Accordingly, a TDIU is not warranted. Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), no additional symptoms are shown that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. As the preponderance of the evidence is against entitlement to a TDIU, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56. ORDER Entitlement to a TDIU is denied. ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs