Citation Nr: 1648213 Decision Date: 12/28/16 Archive Date: 01/06/17 DOCKET NO. 13-17 866 ) 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 (TDIU). ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to March 1988, with additional service with the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2014, the Veteran withdrew his request for a hearing before the Board. FINDING 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 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 (2016); 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). In this case, the record shows that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in May 2009. 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 Veteran of any evidence that could not be obtained. The Veteran was provided VA examinations in October 2008 and May 2011. The Veteran has not referred to any additional, unobtained, relevant, available evidence. 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). II. 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 (2016). 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 (2016). 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) (2016). 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) (2016). The Veteran is currently service-connected for cold weather injury right foot, rated 30 percent; cold weather injury left foot, rated 30 percent; degenerative disc disease with radiculopathy, rated 20 percent; Raynaud's disease, rated 20 percent; pes planus, rated 10 percent; pseudofolliculitis barbae, rated 10 percent; rhinitis, rated 0 percent; and cold weather injury right hand, rated 0 percent. The combined service-connected disability rating is 80 percent. 38 C.F.R. § 4.25. Based on consideration of his disabilities resulting from cold weather injury, a common etiology, the Veteran meets the percentage criteria for consideration for a TDIU under 38 C.F.R. §§ § 4.16(a), § 4.26 (2016). 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 (2016); 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 he is unable to work due to his back disability. In an October 2008 VA examination report, it was noted the Veteran reported four weeks lost from work due to back and foot pain. The examiner concluded that the Veteran was not unemployable. In the rationale, the examiner found that the major issue with the Veteran was not unemployability, but rather job retraining. It was the examiner's opinion that the Veteran was capable or working and being productive but his current job placed his back in jeopardy and complicated his pain issues with his feet. In a February 2009 statement, Dr. Mathews stated that that the Veteran was a primary care patient being followed for multiple medical conditions including chronic low back pain and radiculopathy. It was noted that he was prescribed medications to control the pain and that the Veteran should not operate heavy machinery, drive, or use weaponry when taking such medications. In a March 2009 administrative note, Dr. Mathews identified his statement for the purpose of disability insurance through the school district. In the statement, Dr. Mathews described the Veteran as a school security guard that had to stand and walk and encounter occasional physical alterations to restrain people. It was noted the Veteran reported being unable to perform his job due to pain. It was also noted that he had been instructed not to work while taking narcotic medications. The physician noted his prognosis was indeterminate at that time. On his March 2009 VA Form 21-8940, the Veteran stated that he last- worked full time in March 2009 in school security office and that his lower back and radiculopathy prevented him from working. In a public school resignation/ retirement form, received June 2009, the Veteran indicated that his resignation was for personal healthy/disability. The administrator that signed the form indicated that the Veteran would be recommended for reemployment. In a VA Form 21-4192, the school district responded that the reason for termination of the Veteran's employment was unknown. A review of the records associated with the Veteran's Social Security Administration benefits application shows that the Veteran was referred for an assessment of his work and functional ability. In a March 2009 Functional Capacity Evaluation Summary, the evaluator stated the Veteran was capable of performing light jobs with modifications such as allowance for postural changes and use of a back brace. A review of VA treatment records shows in March 2010, the Veteran was contacted regarding his interested in a transitional work experience program. It was noted that the Veteran declined interest in the work program because he was in receipt of SSA benefits. In a May 2011 VA examination for peripheral nerves, the examiner found that the Veteran would not be able to handle his previous occupations as security since that required a lot of force, wrestling, running. It was this examiner's opinion that he would not be able to perform any occupations requiring long walks, heavy lifting, but it was noted that he could perform desk jobs and light duty occupations. A review of a March 2012 private treatment record shows that the Veteran was involved in an automobile accident in February 2012. The Veteran reported symptoms that included low back pain and foot pain. He reported that he was in a previous automobile accident in 2010 when he was rear-ended. He denied any history of work related injury and reported being symptom free until the February 2012 accident. A February 2013 inquiry notes that the Veteran previously applied for vocational rehabilitation services but did not follow through with the evaluation appointment. It was noted that no feasibility determination could be made. Based on the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran has not been unemployable due to service-connected disabilities at any time during the entire appeal period. The medical records and opinions that addressed the Veteran's service-connected disabilities determined that he was able to participate in light physical or sedentary work. In addition, the Board finds that his service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment. While the evidence shows that the Veteran's service-connected disabilities, in particular, his spine, have had an impact on employment as a security officer, the evidence suggests that he would be able to maintain light physical and sedentary employment. In addition, the Veteran was eligible for retraining through VA Vocational Rehabilitation Services, but the Veteran declined those services and did not follow through with the evaluation appointment. There is no evidence of anything out of the ordinary, or not average, in the Veteran's situation as a result of the service-connected disabilities. Although the Veteran is in receipt of SSA disability benefits primarily for disorders of the back, the medical records associated with this decision indicate that he is capable of sedentary employment. While the evidence shows that the Veteran would have difficulty in the capacity of heavy physical employment, the evidence shows that he is able to perform some type of substantially gainful employment despite those limitations. In summary, while the Board does not doubt that the Veteran's service-connected disabilities have some impact on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, the numerous medical opinions of record have concluded that the Veteran's disabilities do not prevent light physical sedentary employment. There are no opinions to the contrary. 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 a TDIU is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs