Citation Nr: 1745580 Decision Date: 10/13/17 Archive Date: 10/19/17 DOCKET NO. 13-29 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service from April 1969 to April 1971. This matter is before the Board from a June 2010 rating decision of the San Juan Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The probative and competent evidence of record preponderates against a finding that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C.A. § 1155 (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 for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, required notice was provided by letter in January 2010. The Veteran has not identified any defect in this notice or claimed any prejudice with respect to this notice. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment notes, have been associated with the electronic claims file. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on 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. § 31.59(c)(4). The Veteran was afforded VA examinations to determine whether he is entitled to a TDIU rating in February 2010, March 2010, and April 2010. The Board finds these to be adequate for adjudication purposes. Although these VA examinations are now over seven years old, the mere passage of time since these examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities. Moreover, the Veteran has not argued the contrary. Additionally, the Veteran has not objected to the adequacy of the 2010 examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. TDIU VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant's disabilities must be 70 percent or greater. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Similarly, a high disability rating is also insufficient to establish entitlement to TDIU; a high disability rating represents an acknowledgment that a veteran's service-connected disabilities make it difficult to obtain or maintain employment. Id. "The question is whether the veteran is capable of performing the physical and mental acts required by employment." Id. The Veteran is service-connected for: diabetes mellitus, type II, with associated erectile dysfunction with a 40 percent disability rating; tinea pedis with a 30 percent disability rating; peripheral neuropathy of the lower left extremity with a 20 percent disability rating; peripheral neuropathy of the lower right extremity with a 20 percent disability rating; sinusitis with a 10 percent disability rating; carpal tunnel syndrome of the left upper extremity with a 10 percent disability rating; carpal tunnel syndrome of the right upper extremity with a 10 percent disability rating; and bilateral tinnitus with a 10 percent rating. Taking into consideration the bilateral factor, the Veteran's combined disability rating is 80 percent from June 8, 2007. The Veteran meets the rating criteria set forth in 38 C.F.R. § 4.16(a). The Veteran maintains that he is entitled to a TDIU because of his diabetes mellitus and related disabilities. He stated that his responsibilities as a medical clerk required him to be either sitting down or standing up, and his peripheral neuropathy was aggravated in both these positions. See November 2009 Statement in Support of Claim and November 2009 Veteran's Application for Increased Compensation Based on Unemployability. The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities have rendered him incapable of maintaining or following a course of substantially gainful employment. The Board observes that the Veteran has completed two years of college, plus additional on-the-job training while working as a medical clerk. See November 2009 Veteran's Application for Increased Compensation Based on Unemployability. He has been unemployed since 2010, when he retired from his job of 27 years as a medical clerk. However, according to the Veteran, his retirement was based on age and time in the job, rather than social or occupational impairment. See September 2012 PTSD VA examination report. Moreover, the Veteran has been afforded several VA examinations in conjunction with his claim. From these examination reports, it is not shown that the Veteran would be unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. Specifically, a February 2010 VA diabetes mellitus and peripheral nerves examination report notes the Veteran's complaints related to diabetes and peripheral neuropathy, including paresthsias, loss of sensation and pain. The examiner stated that the Veteran's diabetes limited his diet but did not limit his physical activity. The examiner noted that the Veteran had been employed for more than 20 years as a medical clerk. Although the Veteran reported that he had missed 17 weeks of work during the past year, the examiner noted that this was for both medical appointments and a period of convalescence following surgery for a nonservice-connected knee disability. The examiner opined that the Veteran would have restrictions in prolonged sitting and standing, with breaks for diabetic snacks. The examiner further opined, however, that the Veteran was able to obtain, perform and secure financially gainfully employment requiring sedentary or semi-sedentary duty work that allowed for adjustments or changes in body positions. On March 2010 VA skin examination, the examiner opined that the Veteran's skin conditions would not affect his ability to perform his usual daily activities so long as he not exposed for a prolonged time to hot and humid environments. On April 2010 VA examination, the Veteran was evaluated for his bilateral carpal tunnel syndrome of the upper extremities. The examiner noted the Veteran would experience difficulties when engaged in repetitive manual work. Based on the foregoing, the Board finds that the evidence of record indicates that despite the reduced reliability, productivity, and ability to stay in one position for very long brought on by the Veteran's service-connected disabilities, the Veteran remains capable of performing in sedentary labor positions without prolonged sitting or standing, or repetitive manual work. In reaching this determination, the Board acknowledges a statement dated June 2011 from the Veteran's private physician, Dr. R.G., who diagnosed diabetic neuropathy, diabetes mellitus, Type II, carpal tunnel syndrome, claudication of the arterial veins, history of pancreatitis, and chronic sinusitis, and stated that these rendered the Veteran totally incapacitated. The Board notes, however, that Dr. R.G.'s opinion that the Veteran is totally incapacitated is based, in part, on disabilities for which the Veteran is not service-connected. Therefore, the Board finds the aforementioned VA examination reports more probative. The Board has also taken into consideration the symptoms reported by the Veteran. His lower extremity pain and numbness are no doubt symptoms that he struggles with quite frequently. However, the difficulty caused by these symptoms is accounted for in his combined disability rating of 80 percent. Van Hoose, 4 Vet. App. at 363. As noted above, the Board has determined that the evidence of record weighs against a finding that the Veteran's service-connected disabilities have rendered him incapable of obtaining or maintaining substantially gainful employment, and TDIU must be denied. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule cannot aid the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A TDIU is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs