Citation Nr: 1639204 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-24 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction. 4. Entitlement to a disability rating in excess of 10 percent for diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II, with erectile dysfunction. 5. Entitlement to a disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II, with erectile dysfunction. 6. Entitlement to an initial disability rating in excess of 30 percent for kidney disease associated with diabetes mellitus, type II, with erectile dysfunction. 7. Entitlement to an initial disability rating in excess of 10 percent for atherosclerotic heart disease associated with diabetes mellitus, type II. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his son-in-law, J.B. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to October 1962, and from February 1963 to June 1973. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing at the RO in March 2016, before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the claims file. This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. 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 issues of entitlement to a disability rating in excess of 50 percent for PTSD; entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, with erectile dysfunction; entitlement to a disability rating in excess of 10 percent for diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II, with erectile dysfunction; entitlement to a disability rating in excess of 10 percent for diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II, with erectile dysfunction; entitlement to an initial disability rating in excess of 30 percent for kidney disease associated with diabetes mellitus, type II, with erectile dysfunction; and entitlement to an initial disability rating in excess of 10 percent for atherosclerotic heart disease associated with diabetes mellitus, type II, with erectile dysfunction, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran has been service-connected for posttraumatic stress disorder [PTSD], at a 50 percent disability rating from July 22, 2003; kidney disease associated with diabetes mellitus, type II, with erectile dysfunction, at a 30 percent disability rating from April 12, 2010; diabetes mellitus, type II, with erectile dysfunction, at a 20 percent disability rating from January 25, 2001; tinnitus, at a noncompensable disability rating from June 27, 1973, and a 10 percent disability rating from November 1, 1982; diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from November 26, 2002; diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from November 26, 2002; tinea pedis with hyperkeratosis of the feet at a noncompensable disability rating from June 27, 1973, and a 10 percent disability rating from July 13, 2005; shell fragment wound residuals of the right knee with retained foreign body, at a 10 percent disability rating from June 27, 1973, noncompensable disability rating from November 1, 1982, and a 10 percent disability rating from August 4, 2005; shell fragment wound scar of the left hand at noncompensable disability rating from June 27, 1973, and 10 percent from August 4, 2005; atherosclerotic heart disease associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from April 12, 2010; bilateral hearing loss, at a noncompensable disability rating from June 27, 1973; tympanoplasty of the left ear, at a noncompensable rating from June 27, 1973; shell fragment wound scar of the right lower thigh at a noncompensable disability rating from June 27, 1973; punctate wound scar of the right lower forearm, at a noncompensable disability rating from June 27, 1973; and erectile dysfunction associated with diabetes mellitus, type II, with erectile dysfunction at a noncompensable disability rating from December 13, 2002, to April 12, 2010. The combined disability rating is 70 percent from July 22, 2003, 80 percent from August 4, 2005, and 90 percent from April 12, 2010, and the Veteran is entitled to special monthly compensation based on the loss of use of a creative organ. 2. The evidence of record favors a finding that the Veteran's service-connected disabilities are of such severity that they preclude substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 C.F.R. §§ 3.340, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As the Board's decision to grant TDIU herein constitutes a complete grant of the benefit sought on appeal as to this issue, no further action is required to comply with the VCAA and the implementing regulations. II. The Merits of the Claim The Veteran contends that his service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his education and occupational experience. Total disability ratings for compensation will be assigned, 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. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). For the above purpose of one disability rated at 60 percent, or one disability rated at 40 percent, the following are to be considered a single disability: disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system. Id. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court noted that "a claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity." The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16 (a). That is, a veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran 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 the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is in effect for PTSD, at a 50 percent rating from July 22, 2003; kidney disease associated with diabetes mellitus, type II, with erectile dysfunction, at a 30 percent disability rating from April 12, 2010; diabetes mellitus, type II, with erectile dysfunction, at a 20 percent disability rating from January 25, 2001; tinnitus, at a noncompensable disability rating from June 27, 1973, and a 10 percent disability rating from November 1, 1982; diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from November 26, 2002; diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from November 26, 2002; tinea pedis with hyperkeratosis of the feet, at a noncompensable disability rating from June 27, 1973, and a 10 disability percent from July 13, 2005; shell fragment wound residuals of the right knee with retained foreign body, at a 10 percent disability rating from June 27, 1973, noncompensable disability rating from November 1, 1982, and a 10 percent disability rating from 10 percent from August 4, 2005; shell fragment wound scar of the left hand, at noncompensable disability rating from June 27, 1973, and 10 percent from August 4, 2005; atherosclerotic heart disease associated with diabetes mellitus, type II, with erectile dysfunction, at a 10 percent disability rating from April 12, 2010; bilateral hearing loss, at a noncompensable disability rating from June 27, 1973; tympanoplasty of the left ear, at a noncompensable disability rating from June 27, 1973; shell fragment wound scar of the right lower thigh, at a noncompensable disability rating from June 27, 1973; punctate wound scar of the right lower forearm, at a noncompensable disability rating from June 27, 1973; and erectile dysfunction associated with diabetes mellitus, type II, with erectile dysfunction, at a noncompensable disability rating from December 13, 2002, to April 12, 2010. The Veteran has had a combined disability rating of 70 percent from July 22, 2003, 80 percent from August 4, 2005, and 90 percent from April 12, 2010. In addition, entitlement to special monthly compensation based on the loss of use of a creative organ was granted from December 13, 2002. The Veteran meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether his service-connected disabilities, either alone or in the aggregate, prevent him from securing or following a substantially gainful occupation. According to an October 27, 2010, statement from the Veteran's VA physician, the Veteran was "unemployable on account of multiple medical problems. He is not able to engage in a gainful employment. His main medical problems include: uncontrolled diabetes mellitus[,] colon cancer - follower by GI clinic[,] [PTSD] hypertension[,] recent episode of syncope[,] [and] recent episode of rhabdomyolysis." The Board recognizes that the physician was considering nonservice-connected disabilities. The Board has also considered the Veteran's hearing testimony regarding his PTSD symptoms and limitations due to diabetes mellitus and diabetic neuropathy. The Veteran was examined by VA in September 2010. The medical and lay evidence, taken together, leads the Board to conclude that the evidence of record favors a finding that the Veteran's service-connected disabilities, when analyzed as a whole, prevent him from securing or following a substantially gainful occupation. Accordingly, entitlement to TDIU is granted. ORDER Entitlement to a total disability evaluation based on TDIU is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). At the March 2016 Board hearing, the Veteran testified that he is currently receiving treatment for various disabilities from VA. These records are also not within the claims file as the most recent VA treatment records are dated February 2011. Therefore, on remand any outstanding records, VA or private, must be secured and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As such, all outstanding records must be obtained and associated with the claims file. 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.) 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment. All treatment records dated since February 2011 must be obtained and associated with the claims file. The Veteran should also be asked to identify any private medical treatment, and the records thereof should be obtained. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice of the non-receipt of any requested records must be provided to the Veteran. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claims and a notice that the Veteran is ultimately responsible for providing the evidence. The AOJ should also inform the appellant that he can provide alternative forms of evidence. 2. Following the completion of the foregoing, and after undertaking any other development deemed necessary, the Veteran's claims should be readjudicated, considering all applicable laws and regulations. If the claims are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a Supplemental Statement of the Case and allowed an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs