Citation Nr: 1753795 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 15-09 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975 with additional service in the Alabama National Guard through October 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that reopened but denied the claim of TDIU. In its May 2017 rating decision, the RO continued the evaluation of perifolliculitis capitis with pruritis, keloidal folliculitis, scarring alopecia of the scalp, and chronic cutaneous lupus as 60 percent disabling. The record reflects the Veteran submitted a notice of disagreement (NOD) in June 2017. Although no statement of the case has yet been issued by the Agency of Original Jurisdiction (AOJ), the Board declines to take jurisdiction of those issues at this time because the electronic record reveals that development is ongoing at the AOJ. Those matters are not currently developed for appellate review. This appeal is limited to the issue on the title page. See Manlicon v. West, 12 Vet. App. 238 (1999). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) ( 2012). FINDING OF FACT The Veteran's service-connected disabilities of perifolliculitis capitis with pruritis, keloidal folliculitis, scarring alopecia of the scalp, chronic cutaneous lupus, and depressive disorder do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The RO provided timely notice in its letter dated January 2013 that met the requirements. The notice included all criteria for individual unemployability and an explanation of the Veteran's and VA's respective responsibilities to obtain relevant evidence. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO associated the Veteran's service and VA treatment records with the claims file. The record also contains reports of VA examinations in February 2003, February and May 2011, January 2013, January 2015, November 2016, and April 2017, and records from VA Vocational Rehabilitation and Employment. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). With respect to TDIU, the duty to assist does not require obtaining a medical opinion regarding the combined impact of all of the Veteran's service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). A TDIU determination is a factual rather than a medical question, and thus is an adjudicative determination made by the finder of fact. Geib, 733 F.3d at 1354. The need for a combined-effects opinion is to be determined on a case-by-case basis and depends on the evidence of record at the time of the decision. Floore, 26 Vet. App. at 376. In this case, the VA examinations of record provide functional assessments of the Veteran's service-connected disabilities, and thus provide sufficient evidence for the Board to make a decision with regard to TDIU. The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). For the aforementioned reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. TDIU The Veteran served as a U.S. Army clerk, typist, and financial specialist. The Veteran asserts that his service-connected perifolliculitis capitis with pruritis, keloidal folliculitis, scarring alopecia of the scalp, chronic cutaneous lupus, and depressive disorder prevent him from maintaining substantially gainful employment. It is the established policy See 38 C.F.R. § 4.16. 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." See 38 C.F.R. § 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case, the Board notes the Veteran's service-connected disabilities included perifolliculitis capitis with pruritis, keloidal folliculitis, scarring alopecia of the scalp, and chronic cutaneous lupus rated as 60 percent disabling; and depressive disorder rated as 50 percent disabling. The combined disability rating was 80 percent. Therefore, the threshold percentage rating requirements of TDIU are met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). With the threshold requirements satisfied, the Board turns to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, sufficient to establish eligibility for special monthly compensation. In determining whether the Veteran was capable of obtaining and maintaining gainful employment, the Board must consider the Veteran's work history, education, and any special training. In his application for TDIU and letter dated March 2012, the Veteran indicated his post-service career has primarily been in food service management and that he last worked full-time in 2003. The Veteran reported he completed his bachelor's degree in business management and economics, and noted in his resume that he took courses in pursuit of master's degrees. 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 he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board finds that the Veteran is able to secure or follow a substantially gainful occupation despite his service-connected disabilities. Although the records demonstrate continued symptoms associated with the Veteran's service-connected disabilities during the appellate period that would affect his ability to perform work activity individually or in combination, no examiner has found that the Veteran is unable to the physical and mental acts required by employment. The Board further notes that the Veteran did not appear for evaluations before VA Vocational Rehabilitation and Employment in April and May 2012. In a VA mental examination report dated January 2013, the VA examiner continued a diagnosis of a depressive disorder. He noted that the Veteran was last employed in 2002 when he left a sales career. The Veteran did not use any psychiatric medication. The examiner found that the Veteran's depression was most likely (more than 50/50 probability) caused by service-connected perifolliculitis capitis with pruitis keloidal folliculitis scarring alopecia of the scalp manifesting as difficulties with self-esteem, and non-service connected chronic cutaneous lupus in combination with gout glaucoma, prostate complications, and hypertension. The examiner opined the Veteran possessed an occupational and social impairment with occasional decrease in work efficiency. The examiner further opined the Veteran has intermittent periods of inability to perform occupational tasks, although generally functions satisfactorily, with normal and routine behavior, self-care, and conversation. Regarding the Veteran's skin disabilities, the VA examiner in January 2015 opined the conditions with the chronic itching and skin appearance would impact the type of job the Veteran is able to hold. Although employment in a food service occupation might well be precluded, the Veteran's education and experience as a business manager and administrator is not precluded by the skin disorder because he has experienced the disorder for several decades including during periods of productive employment. The VA examiner noted the Veteran's statement that he is able to work, but not at his preferred occupation or educational level. The January 2015 VA examination report further indicated the Veteran performed "random" jobs such as painting and roofing. The examiner noted no cognitive, communications, thought processes, or social interaction deficits and noted that the Veteran enjoyed going to a casino with his spouse indicating a capacity to engage others in a public setting. Similarly to the January 2013 examination, the VA mental examiner in January 2015 opined the Veteran has an occupational and social impairment with reduced reliability and productivity. In a November 2016 VA skin examination report, the VA examiner opined the Veteran's skin conditions impact the Veteran's ability to work, and premised the opinion upon the Veteran's reports of itching throughout the day, loss of self-esteem, and problems with aesthetics issues. Most recently in April 2017, the VA examiner opined the Veteran's skin conditions do not impact his ability to work. In this regard, the VA examinations consistently conclude that based on the Veteran's education, prior work history and experience, the Veteran's service-connected disabilities do not limit him to the extent that would preclude all forms of employment. These conclusions were based on interviews of the Veteran, review of the claims file and examination of the Veteran, and are entitled to great probative weight. Additionally, the Board has considered the Veteran's lay assertions that he is unemployable due to his service-connected disabilities. However, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his service-connected disabilities do not render the Veteran unable to secure or follow a substantially gainful occupation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities. While VA psychological examiners have noted it results in some decrease in efficiency, the Veteran is nonetheless still able to work. Likewise, the skin examinations acknowledge some impairment but that work is not precluded. Nor is there an indication the two disabilities combined preclude employment. Ultimately, the Board places far more probative weight on the Veteran's work and education history, as well as on results of recent evaluations of the Veteran's service-connected disabilities and the findings of examiners. Here, the evidence is against a finding of inability to obtain and retain substantially gainful employment due to service-connected disabilities. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs