Citation Nr: 1709331 Decision Date: 03/27/17 Archive Date: 04/07/17 DOCKET NO. 13-14 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity. 2. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Robert Surface, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1976. He served in the Republic of Vietnam and was awarded a Combat Action Ribbon and Purple Heart. This matter comes before the Board of Veterans' Appeals on appeal of rating decisions issued in October 2011 and February 2015 by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a videoconference hearing before the undersigned in February 2017. A transcript has been associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. On February 2, 2017, prior to the promulgation of a decision by the Board, the Veteran indicated on the record at the February 2017 videoconference hearing before the Board that he was withdrawing the appeal as to the claims for service connection for carpal tunnel syndrome of the left and right upper extremities. 2. The Veteran's service-connected disabilities consisted of post traumatic stress disorder (PTSD) (70%); Ischemic heart Disease (60%); cervical radiculitis (40%); ulnar radiculopathy of the right upper extremity (10%); ulnar radiculopathy of the left upper extremity (10%); and hearing loss (0%); with a combined rating of 90 percent from August 31, 2010. 3. The Veteran has graduate and post-graduate degrees and a long work history and experience as a college professor, instructor, consultant, educational author, and executive coach. 4. The Veteran was engaged in substantially gainful employment prior to January 1, 2013. 5. The Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his educational and work background from January 1, 2013. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the Substantive Appeal as to the appeal of the claims for service connection for carpal tunnel syndrome of the left and right upper extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for entitlement to a total rating based on individual unemployability by reason of service-connected disabilities are not met prior to January 1, 2013. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16 (2016). 3. The criteria for a total rating based on individual unemployability by reason of service-connected disability have been met from January 1, 2013. 38 U.S.C.A. §§ 1155, 7105 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Withdrawn Appeals The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.101 (2016). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. On February 2, 2017, prior to the promulgation of a decision by the Board, the Veteran indicated on the record at the February 2017 videoconference hearing before the Board that he was withdrawing the appeal as to the claims for service connection for carpal tunnel syndrome of the left and right upper extremities. There is no allegation of error of fact or law remaining for appellate consideration at this time. Accordingly, the appeal is dismissed. 2. Entitlement to TDIU Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO provided a notice letter to the Veteran in June 2011, prior to the initial adjudication of the claim. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. The Veteran submitted medical evidence and a vocational assessment in support of his claim. He also submitted information and evidence regarding his work experience and earnings. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. The Veteran was afforded VA examinations in 2011 and 2014 and medical evidence was obtained as to the nature and severity of service-connected disabilities and how the disabilities functionally impacted the Veteran. The Board finds that the VA examinations are adequate for adjudication purposes. The examinations were performed by medical professionals based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examiners carefully examined the Veteran and the examination reports are accurate and fully descriptive, and fully address the criteria necessary to adjudicate this appeal. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Total disability meriting a 100 percent schedular rating exists "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. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability may nonetheless be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from 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. "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). 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..." Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Veteran's service-connected disabilities are PTSD (70%); Ischemic Heart Disease (60%); cervical radiculitis (40%); ulnar radiculopathy of the right upper extremity (10%); ulnar radiculopathy of the left upper extremity (10%); and hearing loss (0%); with a combined rating of 90 percent from August 31, 2010. Since the Veteran has a combined total rating of 90 percent from August 31, 2010, he has met the minimum requirements of § 4.16(a) from that date. The Board finds that the weight of the evidence of record shows that for the time period prior to January 1, 2013, the service-connected disabilities did not prevent the Veteran from securing and following all forms of substantially gainful employment consistent with his work and educational background. The weight of the evidence of record shows that the Veteran was able to perform substantially gainful employment consistent with his educational and work background prior to January 1, 2013. The evidence of record shows that the Veteran has graduate and post-graduate degrees; he obtained a doctorate degree in educational administration in 1972. The Veteran has a 22 year work history as a college professor and instructor, educational author, and executive coach. From 2001, after retirement as a professor, the Veteran was self-employed as a consultant until August 1, 2014. See the Veteran's statements dated in May 2013 and March 2014, the August 2014 statement from the Veteran's accountant, and the vocational assessment dated in February 2016. The weight of the evidence shows that the Veteran was engaged in substantially gainful employment prior to January 1, 2013. The Veteran provided competent and credible evidence as to his earnings for the time period of this appeal. In a November 2012 statement, the Veteran indicated that on his 2006 to 2011 tax forms, in block 16A, he reported his earned income in 2000, the year that he retired, was $144,358.00. The Veteran stated that he reported his subsequent monthly earned income for years 2006 through 2010 as $3,009.00; $2,904.00; $1,840.00; $1,567.00; and $1,687.00 for an average of $2,201.00 per month since he retired. The Veteran's tax forms indicate that the Veteran reported business income as follows: $19,241 for 2005, $34,169 for 2006, $22,084 for 2008, $18, 801 for 2009, and $19,767 for 2010. See the Forms 1040 submitted by the Veteran in support of his claim. In the December 2012 formal application for TDIU, the Veteran reported his monthly income as Director of College Planning Systems as follows: $3,009 in 2006; $2,909 in 2007; $1,840 in 2008; $1,567 in 2009; and $1,687 in 2010. The Veteran reported that his disabilities, PTSD and spinal stenosis, affected his full time employment on July 1, 2001 and he became too disabled to work on that date. In the July 2015 formal application for TDIU, the Veteran reported his monthly income as a consultant as follows: $3,058 in 2010; $1,782 in 2011; $1,123 in 2012; $605 in 2013; and $669 in 2014. The Veteran reported that his disabilities, PTSD and spinal stenosis, affected his full time employment on July 1, 2001 and he became too disabled to work on that date. In an August 2014 statement, the Veteran's accountant stated that the Veteran informed him that he was no longer working as a College Planning System consultant effective August 1, 2014. At the videoconference hearing before the Board in February 2017, the Veteran stated that he earned approximately $1000 a month as an consultant and he estimated that he earned between $10,000 and $15,000 a year as a consultant. He stated that amount has tapered down after 2004. Board Hearing Transcript, pages 10 to 11. According to the U.S. Census Bureau Housing and Household Economics Statistic Division, the poverty thresholds (for one person) were $11,139 for 2010; $11,484 for 2011; $11,720 for 2012; $11,888 for 2013; and $12,071 for 2014. The weight of the evidence shows that prior to January 1, 2013, the Veteran's annual income exceeds the poverty threshold. The evidence shows that the Veteran's annual business income in 2010 was $19,767; the Veteran's income for 2011 was $21,384 (monthly income of $1782 x 12); and the Veteran's income for 2012 was $13,476 (monthly income of $1123 x 12). The annual income for 2010, 2011, and 2012 exceeds the poverty threshold for those years. Thus, the Board finds that the Veteran was able to maintain substantially gainful employment for the time period prior to January 1, 2013. The Board finds that the evidence establishes that the Veteran's the service-connected disabilities precluded him from securing and following all forms of substantially gainful employment consistent with his work and educational background from January 1, 2013. The evidence shows that the Veteran continued to work as a consultant for time period from January 1, 2013 to August 1, 2014 but his annual income was below the poverty threshold. The evidence shows that the Veteran's income for 2013 was $7,260 (monthly income of $605 x 12) and his income for 2014 was $8028 (monthly income of $669 x 12). The Board finds that there is competent and credible evidence that establishes that the Veteran is precluded from substantially gainful employment due to his service-connected PTSD and the service-connected cervical spine disability with radiculopathies. A July 2011 VA examination report indicates that the VA examiner opined that the Veteran was unemployable as far as obtaining or maintaining gainful employment because of his service-connected disabilities namely PTSD and cervical spine disease with radiculopathies. The VA examiner's rationale was that the Veteran had difficulty getting along with people which affects his interpersonal relationships and the Veteran also had problems with neck pain which radiates into his arms and affects his ability to use his hands normally. The VA examiner also noted that the Veteran had problems sitting at a desk and leaning over or using a keyboard or computer because this amplifies the neck and arm problem. The VA examiner concluded that all of these factors render the Veteran unable to obtain or maintain substantial gainful employment. The Veteran submitted a May 2012 medical opinion in support of his claim. In the May 2012 opinion, the private cardiologist recommended that the Veteran stop the consulting work due to his increased symptoms associated with the physical, emotional, and mental stressors of his consulting work. The private cardiologist stated that the mental/emotional stressors contribute by initiating angina and possibly his PTSD; it was also noted that the Veteran has known myocardial ischemia. The private cardiologist noted that because of the Veteran's angina, history of tachycardia ischemia with risk of recurrence and claudication, he had concerns regarding the Veteran's long distance driving alone that has been necessary, typically after flights, during his work travels and this is another factor which has led to the recommendations that the Veteran stop the consulting work. The Veteran submitted a private vocational assessment dated in February 2016 in support of his claim. P. Clifford, a Certified Vocational Evaluator, opined because of the service-connected disabilities, especially the PTSD, the Veteran has been and continues to be unable to follow and sustain substantially gainful occupation even at a sedentary level and he has been unable to do so since 2007 when his symptoms significantly worsened. The Vocational Evaluator focused on the impairment due to the service-connected PTSD. The Board finds that the competent and credible evidence establishes that from January 1, 2013, the Veteran's service-connected disabilities alone precluded the Veteran from substantially gainful employment consistent with the Veteran's work experience and education. The Veteran argues that he entitled to TDIU for the entire appeal period because he was unable to work as a professor since 2001 and he has been unable to work full time due to his service-connected disabilities. However, the Board points out that substantially gainful employment is not defined as full time work. Rather, substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the 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..." As discussed in detail above, prior to January 1, 2013, the Veteran was able to earn a living wage working part-time as a consultant. For these reasons, the Board finds that the claim for TDIU is granted from January 1, 2013, and the appeal is granted to that extent. However, the Board finds that the preponderance of the evidence weighs against the claim for entitlement to TDIU prior to January 1, 2013, and the claim is denied for that time period. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19. ORDER The appeal of the claims for service connection for carpal tunnel syndrome of the left and right upper extremities is dismissed. Entitlement to TDIU is granted from January 1, 2013. Entitlement to TDIU is denied prior to January 1, 2013. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs