Citation Nr: 1753881 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-17 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1990 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in April 2014 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service connected disabilities do not render him unable to obtain or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. The notice requirements have been met. VA's duty to notify was satisfied by a letter dated December 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). That letter notified the Veteran of the information needed to substantiate and complete his TDIU claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's relevant post-service treatment records have been obtained. The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in October 2013, July 2014, and May 2016. The Board finds that the clinical findings and informed discussion of the Veteran's employability and the symptoms of his disabilities in the examination are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). The Board also finds that there has been substantial compliance with the prior April 2014 remand. See Stegall v. West, 11 Vet. App. 268 (1998). An examination was held pursuant to that remand in May 2016. The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. Since the Board concludes that VA has fulfilled the duty to assist the Veteran in this case, there is no error or issue that precludes the Board from addressing merits of this appeal. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met and, accordingly, the Board will address the merits of the claim. Legal Criteria An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). The central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background In a VA examination dated January 2008, the Veteran reported that his cold injuries did not have an effect on his occupation. In correspondence that month, the Veteran reported that his feet were in constant pain and that his toes "tingle with sharp pains." He reported that he had difficulty walking and sleeping because of his symptoms. He reported that he could not "work outside because my feet can't [stand the weather]." The Veteran's spouse also reported in separate correspondence that he could "barely" walk. In June 2008 correspondence, the Veteran's former employer wrote that the Veteran often had difficulties on his feet and at the end of the day the Veteran's feet would "always be swollen." In that same month, the Veteran's then-current employer wrote that because of the Veteran's disability, he "seemed to be limited to desk work." It was noted that the Veteran can "only stand in the dispatch window for thirty minutes at a time." At that time, the Veteran reported that because of his cold injury disability, he felt that he was "stuck in one job" and that he was "truly limited in changing jobs." In December 2012, the Veteran indicated that he had worked as a laborer from 1999 to 2001, but that his cold injuries had caused him to be unable to work. In a VA examination dated October 2013, the examiner noted that the Veteran's cold injury residuals impacted his ability to work, but gainful employment was not precluded. He noted that the Veteran could stand for up to thirty minutes and walk a half a mile at a time. In an application for increased evaluations dated October 2013, the Veteran reported that his disabilities caused him to "walk awkwardly because it's difficult with my weight on both feet." He reported that he often took "Tylenol and allergy medicine" to alleviate his pain, but that the "side effect is acid reflux. I throw up in my sleep at least twice a week." He reported that because of his symptoms, he was "stuck working administrative work." In May 2013, the Veteran indicated that he was employed as a "driver." He also indicated that there were no "concessions made to employee by reason of age or disability." In a VA examination dated July 2014 the examiner noted that the Veteran's cold injury residuals did not impact his ability to work. In a May 2016 VA examination, the examiner noted that the Veteran's cold injury residual symptoms would affect his ability to work by causing the Veteran's feet to hurt while he worked. The Veteran reported to the examiner at that time "I don't think it stops me from work." The examiner opined that the Veteran's "cold injury residuals do not render him unable to obtain and sustain gainful employment." Analysis Based on a review of the record, the Board finds that the Veteran does not meet the schedular criteria for TDIU. Additionally, the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. Currently, the Veteran's combined compensation is at 90 percent based on four service-connected cold injury residual disabilities rated at a 30 percent evaluation (right and left upper extremities and right and left lower extremities) with two bilateral factors and two service-connected cold injury residual disabilities (right and left ear) at a 20 percent evaluation. The Veteran does not have a single disability that is rated at a 60 percent or higher evaluation. But the Veteran does have a combined rating of 90 percent (which is greater than the 70 percent requirement), and in combination with the bilateral factor, he has one disability with a 40 percent evaluation or higher. See 38 C.F.R. §§ 4.25, 4.26. Accordingly, the Veteran meets the schedular requirements for TDIU. Based on a review of the record, however, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. Every VA examiner who has conducted an examination of the Veteran has opined that the Veteran is able to maintain substantially gainful employment despite his service-connected disabilities. While some have noted that his cold residual symptoms cause several difficulties in his line of work, they ultimately have found that the Veteran is able to still maintain some level of physical occupation, but at the least conduct sedentary work. Correspondence from the Veteran, the Veteran's former spouse, and the Veteran's employers have all detailed the degree of symptoms the Veteran suffers. These symptoms include painful walking, difficulty sleeping, and impairment in physical capability. The Veteran reported that he felt stuck in his occupation and limited in what he could do. The Board is sympathetic to these difficulties and it is clear that these documented instances cause problems within his occupation. But correspondence and the Veteran's own self-report do not show evidence that he is incapable of maintaining gainful employment. There is no evidence in correspondence to suggest that these symptoms prevent him from working. Finally, the evidence shows that the Veteran is still working despite these conditions. He reported that he still worked as a "driver" in May 2013 and in May 2016, the Veteran reported that he didn't feel his disabilities stopped him from working. As such, the Board cannot find that his disabilities prevent him from obtaining or maintaining substantially gainful employment. Based on these facts, the opinions provided by VA examiners, and correspondence provided to the Board, the claim for TDIU must be denied. ORDER Entitlement to TDIU is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs