Citation Nr: 1620511 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 08-37 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from November 1960 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011 the Veteran testified before the undersigned Veterans Law Judge in a "Travel Board" hearing at the RO. A transcript of his testimony is of record. The Board has remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development on several occasions, most recently in November 2015. The requested development has now been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's only service-connected disability is bronchitis. 2. The Veteran's service-connected bronchitis does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. CONCLUSION OF LAW The requirements to establish entitlement to 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 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 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). Compliant VCAA notice in regard to entitlement to TDIU was provided to the Veteran by letter in January 2008, and he had ample opportunity to respond prior to the April 2008 rating decision on appeal. Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The record includes service treatment records (STRs), private treatment records, VA treatment records and VA examination reports. The AOJ submitted a re quest to the Social Security Administration (SSA) for the Veteran's disability file, but that agency noted that relevant medical records have been destroyed. In that regard, under 42 U.S.C. § 402, SSA disability award automatically converts to "old age" pension when the beneficiary turns 65, and SSA's document retention schedule requires the destruction of disability records when the beneficiary turns 72. The Veteran is now 73 years old, so further efforts to pursue records from SSA would be futile. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). The AOJ invited the Veteran to submit any SSA disability records in his possession, but he did not respond. The Veteran has not identified any further existing records that should be obtained before the appeal is adjudicated. The Board is also unaware of any such existing evidence. The Veteran has been afforded numerous VA medical examinations in support of his claim herein adjudicated. The most recent respiratory examination, addressing the Veteran's only service-connected disability (bronchitis), was performed in January 2015. The Board remanded the case in November 2015 for the purpose of affording the Veteran a VA Social and Industrial Survey, which was performed in December 2015. All other development required by the Board's remand has also been accomplished. The Board finds the AOJ has substantially complied with the requirements articulated in the Board's remand. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall). Further, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that assessment is for the 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). Based on a review of the record, the Board finds there is no indication that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). 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 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). The Veteran's present claim for TDIU was received in December 2007. At that time, the service-connected bronchitis was rated as 60 percent disabling. During the course of the appeal the rating for bronchitis was reduced to 30 percent from February 4, 2010, to April 2, 2014, on which date the 60 percent rating was restored. Accordingly, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were not met during the period from February 4, 2010, to April 2, 2014, but those criteria were met before and after those dates. Although the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were not during the period February 2010 to April 2014, the case may be submitted to the Director of Compensation Service for extraschedular consideration if the Veteran is found to have been unemployable by reason of service-connected disability during that period. See 38 C.F.R. § 4.16(b). Unlike extraschedular rating under 38 C.F.R. § 3.321, section 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). Prior to the filing of his present claim for TDIU the Veteran's most recent VA examination for respiratory disease was in July 2007. The Veteran reported shortness of breath with almost all physical activity to include even taking a bath; he also reported being unable to walk more than one block. The examiner did not comment on the occupational impairment associated with the respiratory disease. In his present claim for TDIU, the Veteran reported having had two years of college and having had occupational training in auto mechanics. He stated he had last worked full-time in 1980 as a skycap for American Airlines and that he was currently unemployable due to bronchitis and to hip pain. The Veteran had a VA respiratory diseases examination in January 2008 in which he reported being able to walk only one-half block due to shortness of breath. He admitted continuing to smoke. The examiner's impression was chronic obstructive pulmonary disease (COPD) secondary to cigarette excess, with severe disability with progression. The examiner stated the Veteran's respiratory disability caused him to be permanently totally disabled from gainful employment in his previous job as skycap for American Airlines. The examiner noted the Veteran also had workplace injuries to the hips and shoulders, high blood pressure, high cholesterol and vision deficit, but stated that the Veteran's permanent disability was due to COPD. The Veteran had VA general medical examination in March 2009, intended specifically to determine if the Veteran's COPD was a manifestation of his service-connected bronchitis with right pneumothorax. The examiner stated an opinion that the Veteran's current respiratory problems were caused by COPD and long-term smoking, not caused or aggravated by the in-service bronchitis and right pneumothorax. The examiner also stated the service-connected bronchitis with right pneumothorax did not aggravate any of the nonservice-connected disabilities that caused the Veteran to be unemployable (arthralgias of the hips, shoulders, arms and hands). The examiner also noted that recent pulmonary function tests (PFTs) showed no changes from tests in 1997 and actually showed some improvement, with only mild pattern of obstructive impairment. VA primary care clinic (PCC) notes in May and June 2009 noted complaint of coughing and shortness of breath. The clinician noted that PFTs in December 2004 and in March 2009 had shown mild impairment. The Veteran was noted to be a current smoker with more than 45 pack years smoking history and not ready to quit. The clinical impression was COPD with recent bronchitis. The Veteran agreed to try to reduce his smoking in an effort to improve his ability to breathe. During his Travel Board hearing in March 2011, the Veteran testified that although his hip problems are significant his service-connected lung problems, alone, cause him to be unable to perform his previous work as a "stacker" at an airport. The job involved lifting heavy loads and also involved breathing fumes from jet fuel and automobile exhausts. In addition to working at the airport, he tried to make a living mowing lawns but was physically unable to do so. He was granted unemployability by SSA due to his lung problems, alone (as noted above, SSA notified VA that the Veteran's disability records have been destroyed). The Veteran had a VA respiratory examination in March 2011 in which he reported having worked for an aircraft manufacturer and also having worked for an airline in the 1970s. He also described having had surgery to both hips and having been advised not to lift more than 25 pounds. The examiner noted the Veteran had been diagnosed with COPD due to smoking, and that the Veteran continued to smoke. The Veteran complained of productive cough and reported having had pneumothorax during service. The examiner noted clinical observations in detail, including current PFTs. The examiner diagnosed COPD secondary to long-term use of tobacco, which contributes to his unemployability due to decreased exercise tolerance. The examiner also diagnosed spontaneous pneumothorax for which the Veteran had a thoracotomy in service and presently had no residuals. The Veteran had another VA examination in June 2011, performed specifically to determine the occupational impairment associated with the service-connected bronchitis. The examiner, a physician, reviewed the claims file. The Veteran reported having had a pneumothorax in service. After service he worked for an airline with "sky cabs." In 1980, while driving a cab, he was involved in a motor vehicle accident (MVA) in which his left hip was injured. The Veteran admitted a 55-year history of smoking; the examiner assumed the Veteran was still smoking. The examiner performed a clinical examination and noted observations in detail. The examiner's impression was COPD secondary to long history of smoking that contributes to the Veteran's unemployability by causing decreased exercise tolerance; however, the Veteran would be able to perform work that does not require significant exertion, such as office work. The examiner also stated that the Veteran's in-service pneumothorax had no current residuals and did not limit his ability to continue employment in any way. The Board issued a decision in June 2012 that denied TDIU. The Board's decision was vacated under the terms of a Joint Motion for Remand (JMR) based on a determination that the evidence of record did not establish whether the Veteran's service-connected bronchitis could be distinguished from the COPD that was noted on examination. In compliance with the JMR, as incorporated by the Court's Order in February 2013, the Board remanded the case for VA examination, which was performed in April 2014 by a physician who reviewed the claims file. The examiner noted that bronchitis had been diagnosed in 1962 and that COPD had been diagnosed in 1978. The Veteran complained that he coughs all day and all night and wakes up frequently due to breathing problems. The examiner performed a clinical examination and noted observations in detail. The examiner stated the Veteran has a very sedentary lifestyle and unknowingly avoids exertional dyspnea by shifting his expectations and limiting his activities, but with his current pulmonary function status he is able to fully engage in sedentary employment without restriction. In May 2014 the VA examiner issued an addendum stating that current PFTs, which were administered concurrently with the April 2014 examination, showed moderate obstruction compared to the previous mild obstruction. The examiner stated that, in long-term cigarette smokers, such progression is usually due to emphysema. Based on the April 2014 VA examination cited above the AOJ restored the 60 percent rating for the service-connected bronchitis effective from April 2, 2014, the date of the examination. The Veteran had another VA respiratory examination in January 2015, again by a physician who reviewed the claims file. The examiner noted the Veteran had pneumothorax during service and a 55-year history of smoking, with progressive shortness of breath for which he is seeking unemployability benefits. The Veteran reported that after separation from service he completed two years of automotive training and then worked an aircraft manufacturing facility from 1965 to the 1970s. After being laid off the aircraft manufacturing job the Veteran moved to Dallas and secured employment with an airline company but had to stop that job due to hip problems. In the 1980s the Veteran drove a cab and did yard work but was unable to continue such work due to his arthritic problems, and he applied for SSA disability. The examiner stated the Veteran was very sedentary as baseline for his respiratory and arthritic diseases and would only be able to work in a sedentary capacity. The examiner stated the effects of chronic bronchitis and emphysema in and of themselves do not necessarily incorporate the functional impairment caused by COPD, but conversely the individual contributions made by chronic bronchitis and emphysema on the progression of the Veteran's smoking-related COPD could not be separated without resorting to mere speculation. Regardless, the current PFTs suggest mild-to-moderate obstruction secondary to the combined effects of chronic bronchitis, emphysema and longstanding tobacco use, which is not functionally consistent with total unemployability. Finally, the Veteran had a VA social and industrial survey in December 2015, performed by a physician who reviewed the claims file. The Veteran described occupation experience after service as 10 years working as a machinist in an aircraft manufacturing plant, 15 years as a skycap and 6 years as a cab driver. The Veteran reported he has stopped working about 6 years earlier due to dyspnea related to his service-connected respiratory disability and stated he would still be working except for such disability. The Veteran stated that his job a cab driver required him to lift luggage and walk around the airport for some distance, which he could no longer do because of his shortness of breath. He would also be unable to perform his previous jobs as machinist and skycap for the same reason and would need to take breaks frequently after only a few minutes of standing or walking. However, the examiner noted the Veteran was able to sit for an extended period and to carry on a conversation without apparent shortness of breath or coughing. The examiner concluded the Veteran would not be able to return to his previous jobs but would be able to perform sedentary work such as a clerical job. The Veteran did not describe a need for frequent hospitalization or confinement to his bed due to his disability, so frequent absence from sedentary work would not be anticipated. The evidence of record cited above establishes that the Veteran's service-connected disability precludes him from working in his previous jobs in manufacturing, skycap, cab driver and yard work. However, numerous medical examiners have agreed that the Veteran is not precluded from performing sedentary work such as clerical duties. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that assessment is for the 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). However, the VA examiners' opinions are probative because they document the functional impairment associated with the service-connected disability, which is a key element toward establishing employability. Further, the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The Veteran is shown to have at least one year of college-level coursework; accordingly, the type of sedentary employment described by the VA examiners appears to be within the Veteran's educational capacity. The Veteran's previous experience in manufacturing is consistent with sedentary employment in a clerical capacity in that industry, and his previous work experience is consistent with sedentary employment in that industry as a dispatcher or other clerical role. The Board accordingly finds that the Veteran's service-connected bronchitis does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience; he is therefore not unemployable for the purpose of establishing entitlement to TDIU. The Board acknowledges that sedentary work as described by the VA examiners would be difficult to obtain and maintain, given the Veteran's age and his additional nonservice-connected disabilities, but such considerations are not applicable in a claim for TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. Further, 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. Van Hoose, id. The Veteran has described being granted disability benefits by SSA based solely on his respiratory problems. As discussed above, the Veteran's SSA records were destroyed by that agency are thus not available for review. In any event, even if the Veteran's account is conceded to be an accurate characterization of his SSA disability grant, the findings of the SSA are not controlling in the adjudication of VA benefits. Murincsac v. Derwinski, 2 Vet. App. 363, 370 (1992). In sum, based on the evidence and analysis above the Board finds the Veteran's service-connected bronchitis does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. Accordingly, entitlement to TDIU is not shown and the claim must be denied. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt 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. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. Id; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to TDIU is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs