Citation Nr: 1752697 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 05-32 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her son ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2004 rating decision of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, the Veteran's claims files were transferred to the jurisdiction of the Cleveland, Ohio RO, which has certified the case for appellate review. In January 2008, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the record. The Veteran had requested a hearing before the Board, but the Veteran withdrew that request in writing in December 2005. This claim was previously before the Board in July 2013, at which time the Board remanded it for additional development. FINDING OF FACT The more probative and competent evidence of record preponderates against a finding that the Veteran's service-connected disabilities were of such a nature and severity as to prevent her from securing or following substantially gainful employment prior to February 29, 2008; since that date, the Veteran's combined scheduler disability rating was 100 percent, and she is contending that she is unemployable due to a combination of these same service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to 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(a),(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). Proper notice from VA must inform the appellant 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 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). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in May 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the July 2017 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). 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 appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. Finally it is noted that this appeal was remanded by the Board July 2013 in order to provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion. The Board is now satisfied that there was substantial compliance with this remand. See Stegall v. West, 11 Vet. Ap. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was mailed a letter in November 2015, which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the remand directives were substantially complied with, and, thus, there is no Stegall violation in this case. TDIU The Veteran has contended that her service-connected disabilities prevented her from obtaining and maintaining substantially gainful employment prior to February 29, 2008. Specifically, the Veteran advances that her foot disability prevented her from standing for long periods of time, which affected her ability to work as a nurse. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be 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, this disability shall be ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16(a). In reaching such a determination, 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, 529 (1993). In determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes her case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The 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, 363 (1993). The Veteran's service-connected disabilities for the period prior to February 29, 2008, include: (i) bilateral varicose veins (40 percent); (ii) bilateral pes planus (50 percent); (iii) pelvic abscess and adhesions (30 percent); (iv) hemorrhoids (10 percent); (v) tinea pedis (10 percent). The Veteran's combined rating for her service-connected disabilities was 70 percent, effective February 10, 2003. Her combined schedular disability rating was 70 percent from February 10, 2003, and 100 percent from February 29, 2008. Since February 29, 2008, her varicose veins have been rated as 70 percent disabling. The Veteran reported that she worked as a nurse, and the last date she worked full time was in May 1998. This was the same date she became too disabled to work due to her service-connected disabilities. Although the Veteran did not obtain employment records from her last employer, the Board finds her claim that she previously worked as a nurse to be credible. The Veteran received a letter of appreciation in December 1967 from the Office of the Chief, Nursing Service wishing her success and happiness in the Pharmacy Course that she was entering. In an undated correspondence, the Veteran was noted to have extensive experience in practical nursing, but had difficulties continuing employment in the field due to her service-connected disabilities. The Veteran received computer training, with an expectation that she would then be able to obtain suitable employment in the health care field. She was issued a used computer for her training, and other computer related equipment and adaptive equipment. At the time of the undated correspondence, the Veteran was working in a part-time temporary position at a computer help desk. At the January 2008 Decision Review Officer hearing, the Veteran indicated that she was a nurse, but had not worked since 1998 because she could no longer stand, run, or bend. There were times when she had to "call off" because of her foot disability, and she also had to sit down often. The Veteran further indicated that she would be on her feet for seven to eight hours at a time, and was rarely afforded a break to sit and rest. The Veteran's son also testified at the January 2008 hearing, and stated that as his mother's conditions deteriorated, she was confined to the house. He recounted that she used to work 10 or 12 hour shifts, and after 20 to 30 minutes of activity, she would be in so much pain that she could not do anything more for the rest of the day. Here, the Veteran essentially maintains that her service-connected disabilities rendered her totally unemployable for the period on appeal. The Board acknowledges the Veteran's assertions, but notes that the evidence in this type of claim must indicate that the Veteran is unable to pursue a substantially gainful occupation due solely to her service-connected disabilities. The mere fact that a veteran happens to be unemployed for a period of time or has difficulty obtaining a position in the available employment marketplace is not enough. A high disability rating in and of itself is recognition that the impairment makes it difficult to obtain or retain gainful employment, but the ultimate question is whether the veteran is individually capable of performing the physical and mental acts required by employment, without consideration of his advanced age or of the effects of nonservice-connected disabilities. Van Hoose v. Brown, supra. In reviewing the record prior to February 29, 2008, although the Veteran maintains she was unable to work due to her service-connected disabilities, VA records and the Veteran's statements do not ascribe an inability to work due solely to them. As noted above, the Veteran is college educated, and received additional training with computers during Vocational Rehabilitation. Furthermore, although the Veteran worked the majority of her career on her feet as a nurse, she was able to find new employment at a computer help desk, thus alleviating the need for her to stand for long hours. While the record suggests that the Veteran's service-connected disabilities did affect her employability, the most competent evidence of record preponderates against a finding that she was unemployable solely due to them. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran's overall service-connected disabilities, the evidence of record simply does not support her claim that they are sufficient to produce unemployability. Although her disabilities exhibit a degree of impairment, the evidence does not reflect that gainful employment is precluded solely due to them. To the extent the Veteran is limited by her service-connected disabilities, any such limitation is contemplated in, and is being adequately compensated by, the current disability rating assigned for them. Furthermore, because her combined schedular disability rating beginning February 29, 2008, was 100 percent and she is contending that she in unemployable due to a combination of all service-connected disabilities, a TDIU cannot be assigned simultaneously for that time period. Any particular disability - or combination of disabilities - can only be assigned a single 100 percent rating on any basis, whether schedular or a TDIU, at the same time. See 38 C.F.R. §§ 3.340(a)(2), 4.16(a); Herlehy v. West, 11 Vet. App. 448, 452 (1998) (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("[a] claim for TDIU presupposes that the rating for the condition is less than 100%"); Holland v. Brown, 6 Vet. App. 443, 446 (1994) ("100% rating means that a veteran is totally disabled")). Accordingly, for reasons set forth above, a TDIU rating is not warranted for the entire period on appeal. 38 C.F.R. § 4.16(b). ORDER Entitlement to TDIU is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs