Citation Nr: 1604948 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 07-29 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active service from June 1987 to June 1992 and from May 1993 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2011, the Veteran testified at a video teleconference hearing before the undersigned; a transcript of that hearing has been associated with his claims file. In a November 2013 remand, the Board found that the issue of entitlement to a TDIU had been raised in connection with the Veteran's claim of entitlement to a rating in excess of 10 percent for episodic myotonia with muscle stiffness, right upper extremity, and carpal tunnel syndrome, right wrist, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue for additional development. In a July 2015 supplemental statement of the case, the agency of original jurisdiction (AOJ) denied entitlement to a TDIU, and the claim was subsequently returned to the Board for further appellate consideration. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. In a January 2016 application, the Veteran raised the issues of entitlement to service connection for erectile dysfunction and entitlement to a temporary total disability rating. These issues have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to November 1, 2007, the Veteran's service-connected disabilities do not meet the minimum percentage requirements for award of a TDIU, and his disabilities are not shown to prevent him from obtaining or retaining substantially gainful employment because the Veteran has been gainfully employed on a full-time basis throughout this period. 2. While the Veteran's service-connected disabilities meet the percentage requirements for award of a TDIU from November 1, 2007, his service-connected disabilities are not shown to prevent him from obtaining or retaining substantially gainful employment because the Veteran has been gainfully employed on a full-time basis throughout this period. CONCLUSION OF LAW The criteria for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) prior to November 1, 2007, are not met at any point pertinent to the current appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Specifically, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In this case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, in November 2005, April 2008, June 2008, and May 2011 the AOJ provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Additionally, pursuant to the Board's November 2013 remand, in a June 2014 letter, the AOJ provided notice to the Veteran of the statutory criteria for entitlement to a TDIU, the evidence and information necessary to substantiate his claim for a TDIU, as well as his and VA's respective responsibilities in obtaining such evidence and information. The June 2014 letter also offered the Veteran the opportunity to file a formal claim for a TDIU which would contain information on his employment history and to identify and authorize the collection of any additional evidence. To date, no response has been received. Subsequent to the June 2014 letter, the AOJ readjudicated the claim for a TDIU in a July 2015 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. Also of record are a number of VA examination reports conducted in connection with the Veteran's claims for increased ratings, private personnel records, and the Veteran's lay statements, including testimony before the undersigned Acting Veterans Law Judge during the January 2011 Board hearing. The Veteran has not identified any other additional, outstanding records that have not been requested or obtained. As noted above, the Veteran also provided testimony before the undersigned Acting Veterans Law Judge at a Board hearing in January 2011 relevant to a pending claim for an increased rating for episodic myotonia of the right upper extremity and carpal tunnel syndrome of the right wrist. During the hearing, the Veteran testified that this disability greatly interfered with his employment. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (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 January 2011hearings, the undersigned noted the issue then on appeal. Also, information was solicited regarding the Veteran's current symptoms, treatment, and the resulting functional effects on the Veteran's employment, as well as whether there were any outstanding, pertinent medical records. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. The undersigned suggested the submission of specific, additional evidence pertinent to the right arm and wrist disabilities and their impact on his employment, and remanded the issue to obtain additional pertinent information and evidence. Hence, any omission in this regard was harmless. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. As noted above, in November 2013, the Board remanded the Veteran's claim for additional development. Specifically, the Board directed the AOJ to provide the Veteran with proper notice concerning the laws and regulations governing entitlement to a TDIU, to obtain outstanding VA treatment records, and to schedule the Veteran for a VA examination to address the effects that the Veteran's service-connected disabilities had on his ability to obtain and maintain substantially gainful employment. In June 2014, the Veteran was provided proper notice concerning the laws and regulations governing entitlement to a TDIU. Additionally, updated VA treatment records, dated though June 26, 2015, were associated with the record. The Board notes that the Veteran was not scheduled for a VA examination as directed in its remand. However, the medical evidence of record sufficiently addresses the effects caused by the Veteran's service-connected disabilities on his employment. Specifically, the evidence added to the record in accordance with the November 2013 remand demonstrated that the Veteran is currently employed, and has been employed throughout the appeal period. Thus, in light of the actual evidence of current gainful employment, there has been substantial compliance with the directives because clinical evidence was obtained that addressed the effect of the disabilities on employment status. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The lack of a separate VA examination would only have also determined that the Veteran was employed at that time. Therefore, it is not prejudicial to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, supra; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis In order to establish entitlement to TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Total disability ratings for compensation may be assigned, in circumstances 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 with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In a related provision, 38 C.F.R. § 4.16(b) allows for a Veteran who does not meet the threshold requirements for the assignment of a total rating based on individual unemployability, but who is otherwise deemed by the Director of Compensation & Pension Services to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities, to be rated totally disabled. As provided for in section 4.16(b), total disability ratings for compensation may be assigned on an extra-schedular basis when the schedular percentage threshold requirements set out in § 4.16(a) is not met. The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extra-schedular consideration has been first referred to and denied by VBA's Director of Compensation & Pension Services. The Veteran's claim for an increased rating for episodic myotonia with muscle stiffness, right upper extremity, and carpal tunnel syndrome, right wrist, was received on September 28, 2004. Prior to November 1, 2007, the Veteran was service-connected for mild degenerative joint disease, L-5/S-1, rated as 10 percent disabling; degenerative joint disease, left shoulder, status post surgery, rated at 10 percent disabling; episodic myotonia with blepharospasm, both eyes, rate at 10 percent disabling; scar, left shoulder, rated as 10 percent disabling; episodic myotonia with muscle stiffness, right upper extremity, and carpal tunnel syndrome, right wrist, rated at 10 percent disabling; and episodic myotonia with muscle stiffness, left upper extremity, rated as noncompensable. Overall, the Veteran's combined disability rating was 40 percent. From November 1, 2007, to February 15, 2011, the Veteran was service-connected for posttraumatic stress disorder with depression, rated as 50 percent disabling; mild degenerative joint disease, L-5/S-1, rated as 10 percent disabling; degenerative joint disease, left shoulder, status post surgery, rated at 10 percent disabling; episodic myotonia with blepharospasm, both eyes, rate at 10 percent disabling; scar, left shoulder, rated as 10 percent disabling; episodic myotonia with muscle stiffness, right upper extremity, and carpal tunnel syndrome, right wrist, rated at 10 percent disabling; and episodic myotonia with muscle stiffness, left upper extremity, rated as noncompensable. Overall, the Veteran's combined disability rating was 70 percent. From February 16, 2011, the Veteran was service-connected for posttraumatic stress disorder with depression, rated as 70 percent disabling; mild degenerative joint disease, L-5/S-1, rated as 20 percent disabling; degenerative joint disease, left shoulder, status post surgery, rated at 10 percent disabling; episodic myotonia with blepharospasm, both eyes, rate at 10 percent disabling; scar, left shoulder, rated as 10 percent disabling; episodic myotonia with muscle stiffness, right upper extremity, and carpal tunnel syndrome, right wrist, rated at 10 percent disabling; and episodic myotonia with muscle stiffness, left upper extremity, rated as noncompensable. Overall, the Veteran's combined disability rating was 90 percent. Thus, prior to November 1, 2007, the Veteran's rating did not meet the objective criteria for entitlement to a TDIU, and the Board must decide whether referral for extra-schedular consideration is warranted. From November 1, 2007, the Veteran's rating met the objective criteria for entitlement to a TDIU. The ultimate question then is whether the Veteran's service-connected disabilities have rendered him unemployable. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). 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, 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board must weigh any competent lay evidence and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). In a TDIU determination, VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011). The Federal Circuit explained further that the applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner, meaning that the ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Considering the pertinent evidence of record in the light for favorable to the Veteran, the Board finds that a TDIU is not warranted at any point pertinent to the appeal period. As noted above, in the November 2013 remand, the Board found that there was evidence that the Veteran's service-connected disabilities interferred with his ability to work. For example, during the January 2011 Board hearing, the Veteran stated that he was sometimes unable to grasp things. He also stated that he had to invoke the protections of the Family Medical Leave Act a number of times because he had to take significant amount of time off of work. Nevertheless, the evidence of record demonstrates that the Veteran has been employed on a full-time basis throughout the appeal period. During an October 2004 VA examination, the Veteran reported that his myotonia had affected his job as a corrections officer because he could not release the grip of his trigger finger in an expeditious manner, and that he was responsible for training hundreds of officers. In a January 2005 VA treatment record, it was noted that the Veteran had difficulty with myotonia, resulting in difficulty letting go of the handgrip which interfered which his ability to hold his sidearm as a corrections officer. In May 2008, the Veteran underwent a VA examination, during which he reported working for the county prison for the last twelve years. He stated that as a result of his myotonia, he had missed some time from work. He stated that, by the end of the week, he was usually worn out due to fatigue and physical demands of his responsibilities as a trainer. In a June 2008 VA treatment record, the Veteran reported that he was still working at a supervisor and trainer in the county prison system. In a June 2008 statement, the Veteran stated that his myotonia affected every aspect of his life, including his ability to perform his work tasks. He stated that he had to take medical leave a number of times due to his inability to complete the basic requirements of his position. A March 2009 VA treatment record noted that he was working in the training department in the county prison. In a September 2009 letter, the Veteran's supervisor wrote that the Veteran has been employed for the last thirteen years. The letter also stated that the Veteran suffered from a number of problems at work as a result of his service-connected PTSD. A November 2009 VA treatment note noted that he was still working at the county prison. During a May 2010 VA PTSD examination, the Veteran reported that he was employed full time and that he was recently transferred to a training position which was less stressful. In a September 2010 VA treatment record, the Veteran stated that he was still working in the county prison, and that he was considering a change in duties in an attempt to avoid his current supervisor. During his January 2011 Board hearing, the Veteran testified he was a supervisor and that his primary function was as the training coordinator at the county prison. He stated that, as a result of his service-connected disabilities, his training partner assumed a number of duties for him. In January 2011, the Veteran submitted copies of his Family Medical Leave Act application, as well as a detailed list of the number of work days lost from 2007 to 2010. In 2007, the Veteran missed twenty-four days of work; in 2008, the Veteran missed thirty-nine days of work; in 2009, the Veteran missed twenty days of work; and in 2010, the Veteran missed twenty-six days of work. The Veteran also submitted an article discussing the symptoms and effects of myotonia. During a March 2011 VA PTSD examination, the Veteran reported that he was employed full time as a corrections officer, and that he had held that position for the last thirteen years. During a May 2011 VA examination, the Veteran stated that, as a result of his episodic myotonia, he experienced a number of problems at work as a trainer, including an inability to release his grip or muscle postures. Furthermore, he also reported difficulty releasing the trigger on the gun range. However, the examiner noted that the Veteran found ways to accommodate for these difficulties, and that he was still fully employed. In an August 2011 VA treatment record, the Veteran reported that he was still working at the county prison. In January 2015, the Veteran reported that he was still working full time at the county prison, that he recently contacted vocational rehabilitation, and that he was looking for work in the federal system. More recently, in a June 2015 VA treatment record, the Veteran reported that he continued to work the swing shift for the county prison system and that he was looking forward to retirement in three to five years. He also reported struggling with the stresses of work. Based on the evidence discussed above, the Board finds that the Veteran has been employed on a full-time basis as a supervisor/trainer thoughout the appeal period. Despite the effects caused the Veteran's service-connected disabilities on his ability to work, the Veteran has self-admittedly adapted and has maintained employment. Furthermore, in the Board's judgment, the Veteran's position as a supervisor/trainer in the county prison system represents substantially gainful employment. Notably, there is no indication in the record, and the Veteran has not asserted, that this position represents anything less than substantially gainful employment. Therefore, as the Veteran is currently substantially gainfully employed in a fulltime position, the Board finds that referral for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) for the period prior to November 1, 2007 is not warranted, and the criteria for a TDIU are not met at point pertinent to the current appeal. In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the "benefit of the doubt" rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is denied. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs