Citation Nr: 1608447 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 98-08 269A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This matter was previously before the Board in October 2011, at which time it was remanded for further development. It is now returned to the Board. FINDINGS OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letter dated June 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). TDIU 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 (2015). 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 (2015). A TDIU 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 as a result of two or more 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 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2015). In this case, the Veteran is service-connected for fibromyalgia, rated 40 percent; patella compression syndrome of the right knee, rated 10 percent; patella compression syndrome of the left knee, rated 10 percent; carpal tunnel syndrome of the right wrist, rated 10 percent; and carpal tunnel syndrome of the left wrist, rated 10 percent. The combined service-connected disability rating is 60 percent. 38 C.F.R. § 4.25 (2015). Even considering combinations based on the bilateral factor, the Veteran does not meet the percentage criteria for consideration for TDIU under 38 C.F.R. § 4.16(a). 38 C.F.R. §§ 4.26 (2015). However, consideration of TDIU pursuant to 38 C.F.R. § 4.16(b) must be considered. 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 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that she is unable to work due to fibromyalgia, carpal tunnel syndrome, and knee disabilities. In an April 2009 VA examination report, the examiner noted the Veteran's fibromyalgia would not likely tolerate a full work day or full work week. It was noted she would require multiple breaks during the day. Further, it was noted she would more than likely require ergonomic assessment and set up. The Veteran's September 2010 VA examiner noted that the Veteran's fibromyalgia would certainly result in frequent lost days of work, which the examiner estimated would likely exceed the number most employers could tolerate. The examiner further found the Veteran not capable of physical work. In a February 2014 VA examination report, the examiner noted that for the Veteran's bilateral knee disability, the Veteran would need to be able to take frequent breaks to stand when sitting for more than 10 minutes. It was noted the Veteran stated that she would be able to sit as long as she can stretch and extend her legs. The Veteran stated that if she did not have medication for pain that she would not be able to function at all due to fibromyalgia. In an April 2014 VA examination report, in regard to the carpal tunnel syndrome, the examiner noted that pain limited the Veteran's ability to perform increased activity. It was noted she needed to avoid triggers. In regard to her three service-connected disabilities, the examiner opined that the Veteran's disabilities would limit her ability for sedentary and physical employment. It was noted she would need to be able to take frequent breaks related to bilateral knee pain and to stand and walk at her discretion. Further, it was noted she would need to avoid lifting heavy objects and avoid repetitive activity since that would aggravate her wrists. She would need to take frequent breaks from computer work and using the mouse. It was noted her fibromyalgia appeared to be somewhat controlled with current medication. It was further noted that she would need to be aware of flares and avoid activity that would trigger pain. The examiner found the Veteran may need to make accommodations at work related to her condition. It was noted she would need a user friendly work space for carpal tunnel syndrome. Finally, the examiner noted that physical employment seems to be more problematic than sedentary employment. After a review of the evidence, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. While there is evidence that the Veteran's service-connected disabilities would have an impact on her ability to work, the evidence suggest that she would be able to maintain sedentary employment. Here, the Board is sympathetic to the Veteran's claim. The Board does not doubt that the Veteran's service-connected disabilities cause occupational impairment. However, that impairment is compensated by the current schedular ratings for those disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). While there is evidence that the Veteran would need to take frequent breaks to stretch and she would need to maintain use of her pain medication, the preponderance of the evidence shows that she is able to perform some type of substantially gainful employment despite those limitations. The most recent VA examiner specifically stated that she may need to make accommodations at work, but the examiner also did not find that the Veteran would be unable to sustain gainful employment in a sedentary position due to service-connected disabilities. The VA examiner indicated that physical employment would be more problematic than sedentary employment. While opinions in 2009 and 2010 suggest that the Veteran would have had difficulty with a full work week or full day, those opinions also suggest that she would require ergonomic assistance, breaks during the day, and days of leave. The Board has evaluated the evidence and finds that it does not show that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. The Board finds that the evidence regarding the Veteran's situation does not warrant referral of this case for consideration under 38 C.F.R. § 4.16(b). In making that determination, the Board is not refuting the Veteran's noted physical limitations or her own contentions that her service-connected disabilities affect his ability to work. However, the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities cause unemployability. Thus, referral of the TDIU claim for extra-schedular consideration is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim for TDIU must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs