Citation Nr: 1608240 Decision Date: 03/01/16 Archive Date: 03/09/16 DOCKET NO. 05-28 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to a compensable rating for hypertensive nephropathy (claimed as renal failure/kidney disease) with proteinuria. 3. Entitlement to service connection for liver cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to April 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before Decision Review Officers at the RO in July 2008 and October 2014, and before the undersigned at an August 2010 Travel Board hearing. Transcripts of the hearings are of record. In January 2011 the Board remanded the appeal for additional development. In June 2013 the RO denied a claim for a compensable rating for hypertensive nephropathy (claimed as renal failure/kidney disease) with proteinuria. The Veteran filed a notice of disagreement in January 2014. A May 2015 rating decision denied the Veteran's claim for service connection for liver cancer. Later that same month the Veteran disagreed with the denial of the claim. As will be discussed below, the Veteran has not yet been provided with a Statement of the Case for these issues. The issue of entitlement to a rating higher than 40 percent for hepatitis C with cirrhosis and stage 3 fibrosis with arthralgia has been raised by the record in a February 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claim for entitlement to a compensable rating for hypertensive nephropathy (claimed as renal failure/kidney disease) with proteinuria and the claim for service connection for liver cancer, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU, nor have they been shown to preclude him from securing and following a substantially gainful occupation consistent with his education, training and work experience. CONCLUSION OF LAW The requirements to establish entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). Here, VCAA notice was provided by correspondence in May 2001 and March 2006. Neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The case was last readjudicated in July 2012. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service treatment records, and VA examination and opinion reports. The Veteran has not identified any additional treatment records that should be obtained before the appeal is adjudicated. The Veteran was afforded hearings before Decision Review Officers (DROs) and an Acting Veterans Law Judge (AVLJ), at which he presented oral testimony in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the DROs and AVLJ identified the issue and the Veteran testified as to his symptomatology and treatment history for the relevant period in question. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearings. The hearings focused on the elements necessary to substantiate the claim and the Veteran testified as to those elements. As such, the Board finds that there is no prejudice to the Veteran in adjudicating the claim herein decided and that no further action pursuant to Bryant is necessary. Based on a review of the record, the Board finds that there is no indication that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the AOJ has substantially complied with the previous remand directives such that no further action is necessary in this regard. 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). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal. Evidence and Analysis The Veteran contends that he is unemployed and that he stopped working between 1994 and 1995 due the symptomatology from his hepatitis C infection. More recently, at the October 2014 DRO hearing, the Veteran asserted that the service-connected hypertensive nephropathy with proteinuria impacted his employability. Of note, as further discussed below, the Veteran has given inconsistent reports as to why he ceased employment, alternating between reporting a neck and back trauma and the service-connected disabilities. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). However, because it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, rating boards should submit to the Director, Compensation and Pension Services, 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). See 38 C.F.R. § 4.16(b). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. Id.; see also 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). 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. Service connection is currently in effect for hepatitis C with cirrhosis and stage 3 fibrosis with arthralgia, rated as 20 percent disabling from June 4, 2004 to January 30, 2007, and 40 percent disabling thereafter; and hypertensive nephropathy with proteinuria, rated 0 percent disabling. The Veteran's combined disability rating from June 4, 2004 to January 30, 2007 is 20 percent, and 40 percent thereafter. 38 C.F.R. § 4.25 (2015). Thus, throughout the period on appeal the Veteran has not met the schedular criteria for consideration of entitlement to a TDIU. However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Accordingly, the Veteran's claim for TDIU can be considered on an extraschedular basis. The Veteran submitted a VA Form 21-8940 (Veterans Application for Increased Compensation based on Unemployability) in January 2001. He indicated thereon that he had an educational background of one year of high school and no other education or training. His occupational background included construction and selling tires. The Veteran stated he had last worked on November 15, 1995, due to a neck injury. VA treatment notes in February 2001 show that the Veteran reported his highest educational level was 10th grade. After he got out of the Navy he worked as a laborer, and then sold truck tires from 1983 to 1995. Reportedly, he stopped working due to a neck injury and back pain. On VA psychiatric examination in July 2002, the Veteran reported a history of post-service employment as a laborer and selling truck tires from 1983 to 1995. He stated that he was unable to continue that kind of work due to neck and back pain following an accident. In statements after 2005, the Veteran complained of debilitating fatigue, nausea, joint pain, upper right quadrant pain, anorexia, malaise and depression, associated with the service-connected hepatitis C with cirrhosis and stage 3 fibrosis with arthralgia. On a VA examination in August 2007, the Veteran reported that he stopped working in 1994 due to debilitating fatigue associated with his hepatitis C. During a May 2009 VA examination, an examiner indicated that the Veteran was not working and that he would be unable to sustain his usual occupation as a truck driver, on even a part-time basis, in view of his malaise, weakness and fatigue and from his hepatitis C infection and chronic kidney disease. He also noted that the Veteran's intermittent abdominal pain also precluded his ability to work in a competitive environment and to perform daily activities. Thus, while the service-connected hepatitis C impaired the Veteran's ability to resume work as a truck driver, the examiner did not find that he was unemployable due solely to his service-connected hepatitis C and hypertensive nephropathy with proteinuria. Specifically, the examiner did not address the Veteran's ability to work in a different capacity, to include in a sedentary capacity, particularly in light of the fact that the Veteran has a background in sales. A VA examiner in February 2011 determined that the Veteran suffered from arthralgia involving diffuse joint, by history, since 2001, which was at least as likely as not related to the Veteran hepatitis C infection. The examiner, however, opined that the Veteran's service-connected hepatitis C with cirrhosis and stage 3 fibrosis with arthralgia did not likely prevent him from doing his daily routine activities or prevent sedentary jobs. In August 2012 the Veteran underwent a VA examination for evaluating hepatitis, cirrhosis and other liver conditions, in connection with a claim for a compensable rating for hypertensive nephropathy. That examiner opined that the Veteran's kidney condition had no impact on the Veteran's employability. The Veteran reported that he had been previously employed loading truck tires. The examiner noted the Veteran's report that he was unable to work secondary to symptoms of fatigue, nausea and right upper quadrant pain associated with hepatitis C. Based on the Veteran's report, the examiner found that the liver condition impacted his ability to work. However, the examiner did not find that the Veteran was rendered unemployable due to the service connected disabilities. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that assessment is for the VA adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub. nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Board has considered the Veteran's assertions that he is unemployable due to service-connected disabilities. However, the Board places great probative value on the opinions of the VA medical examiners, who is sum, did not find that Veteran's service-connected disabilities rendered the Veteran unemployable. Specifically, at no time has a VA examiner or another physician stated that the Veteran's service-connected disabilities, either singularly or jointly, preclude him from employment. In that regard, VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities, since applicable regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In sum, the Board finds that while the Veteran's service-connected disabilities have been found to cause some impact on his daily functioning, that impact was considered in the schedular ratings currently assigned, and the most probative evidence indicates the Veteran's service-connected disabilities do not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. Accordingly, the criteria for entitlement to TDIU are not met, referral for extraschedular consideration by the Director of Compensation and Pension Service is not required, and the claim for TDIU is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-56. ORDER Entitlement to a TDIU is denied. REMAND In June 2013 the RO denied a claim for a compensable rating for hypertensive nephropathy (claimed as renal failure/kidney disease) with proteinuria. The Veteran filed a timely notice of disagreement in January 2014. However, no Statement of the Case has been issued which addresses accrued benefits. Similarly, a May 2015 rating decision denied the Veteran's claim for service connection for liver cancer. Later that same month the Veteran disagreed with the denial of the claim. To date, a Statement of the Case has not been issued. As timely notices of disagreement were filed but a Statement of the Case with respect to these claims has not yet been issued, the Board is required to remand the issues to the AOJ for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the Statement of the Case, the claims should be returned to the Board only if the appellant perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Issue a Statement of the Case which addresses the claim for service connection for liver cancer and the claim for a compensable rating for hypertensive nephropathy (claimed as renal failure/kidney disease) with proteinuria, so that the Veteran may have the opportunity to complete an appeal on these issues (if he so desires) by filing a timely substantive appeal. The issue(s) should only be returned to the Board if a timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs