Citation Nr: 1753911 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-30 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to December 1945, and passed away in May 2011. The Appellant is his surviving spouse. She has substituted for the Veteran in this appeal. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Boston, Massachusetts Regional Office (ROs) of the Department of Veterans Affairs (VA). The previous remand referred to a decision of the RO in Philadelphia, Pennsylvania. However, that decision dealt with issues that are no longer on appeal. As previously noted, this matter was previously before the Board. Entitlement to TDIU was denied in a February 2014 Board decision. The portion of that decision denying TDIU was remanded to the Board in November 2014 pursuant to a Joint Motion for Partial Remand (Joint Motion) from the Court of Appeals for Veterans Claims (Veterans Court). This matter came before the Board again in January 2015 and in August 2016, when it was remanded for additional development. FINDINGS OF FACT 1. At the time of his death, the Veteran had a combined disability rating of 60 percent. 2. The evidence of record does not show that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful course of employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 3.1000, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Here, appropriate notice was sent via letter in September 2010, and additional notice was provided by letter in July 2012. As to VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the Veteran's claim, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's VA treatment records during the relevant period have been obtained and associated with the claims file, and, where the Veteran has identified and authorized VA to obtain outside non-VA treatment records, VA has made the required attempts to obtain those records and associated any obtained records with the claims file. The Veteran's claims file was also examined by VA examiners in September and November 2016, and opinions were rendered regarding whether the Veteran's service-connected disabilities impaired his ability to secure and follow a substantially gainful course of employment. Neither the Appellant nor her representative has raised any issues with the adequacy of the review of the file or the resulting opinions in this case. The Veteran's scar was also evaluated at a VA examination in October 2010. No objection has been raised with the adequacy of this examination either. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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) Disabilities of one or both upper extremities, or 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. Id. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 actually find employment. Id. Here, the Appellant contends that the Veteran's service-connected disabilities rendered him unemployable without regard to his nonservice-connected disabilities. At the time of his death, he was service connected for residuals of a generalized anxiety disorder, rated 50 percent; for residuals of a cholecystectomy, rated 10 percent; and for a scar, rated 0 percent (noncompensable). His combined disability evaluation was 60 percent. See 38 C.F.R. § 4.25, Table I. As the Veteran's service-connected disabilities did not combine to a 70 percent evaluation, nor did they meet any of the criteria that would permit VA to view them as the same disability listed in Section 4.16(a), the Veteran did not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The next question before the Board is whether the Veteran's claim nevertheless warrants referral for extraschedular consideration under 38 C.F.R. § 4.16(b). The Veteran's scar was evaluated at a VA examination in October 2010. The scar was noted to be a result of his in-service cholecystectomy. The Veteran indicated that the scar was not painful, did not result in skin breakdown, and he reported no other symptoms or functional impairment. The Appellant advised the examiner that the Veteran had a difficult recovery from his cholecystectomy. The examiner found no underlying tissue damage, no inflammation, no edema, no keloid formation, no disfigurement, no limitation on the Veteran's range of motion caused by the Veteran's scar, and no effect on the claimant's usual occupation caused by the Veteran's scar. However, the rest of the medical evidence establishes that the Veteran was quite clearly unable to follow a substantially gainful course of employment at all relevant times during this appeal. As explained in an August 2008 letter from the Veteran's physician, the Veteran's heart condition and strokes had rendered him not only unemployable but unable to care for himself. As a result of these conditions, the physician recommended nursing home or institutional care. Subsequent VA treatment notes and examination reports noted that the Veteran was wheelchair bound at that time. The Veteran's condition continued to deteriorate over the following years. He lived in a nursing home or other care facility, where he was completely dependent on others for all his needs and activities, and eventually contracted a significant dermatological condition and passed away in late May 2011. His death was attributed to his coronary heart disease, cerebrovascular accidents, and insulin dependent diabetes. His doctor noted that he had other significant co-morbidities, including hypertension, generalized anxiety disorder, and bullous pemphigoid (the skin condition previously mentioned). However, the physician's May 2011 treatment notes and June 2011 letter do not indicate that these latter three conditions were related to the Veteran's death. The only one of the conditions mentioned that was service-connected was the general anxiety disorder. The Veteran's status post cholecystectomy and scar disabilities were reevaluated based on a review of his claims file in September 2016. The examiner indicated that neither of these conditions would have prevented the Veteran from securing and following a substantially gainful course of employment. The examiner cited the evidence of record to support this opinion, particularly the October 2008 and October 2010 VA examinations. At the October 2008 examination, the Veteran denied impairment due to his status post cholecystectomy, and, as previously discussed, denied any symptoms resulting from his scar in October 2010. The Veteran's anxiety disorder was also assessed based on a review of his claims file in November 2016. The examiner noted that earlier psychological evaluation from the 1960s and 1970s indicated that the Veteran's anxiety caused significant distress and impairment in his ability to cope with stress in his work and interpersonal relationships. However, the examiner noted that the November 2008 psychological evaluation described his then current condition as one of impaired cognitive function following strokes and vascular dementia. At the time of the 2008 examination the Veteran was disoriented, confused, a poor historian, and had significant memory problems. However, the 2008 examination also indicated that the Veteran's anxiety was presumably less than it had been in the past due to the Veteran's dementia and the numerous medications used to treat the Veteran's various conditions. Based on this evidence, and review of the rest of the file, the November 2016 examiner opined: "Based on the records described above, the Veteran's symptoms of anxiety, while described as severe and prominent earlier in his life, were reported to be reduced by his poor cognitive functioning. Taking all of those factors into account, there is insufficient information to state with greater than 50 percent [certainty the] severity that the level of occupational impairment during the timeframe specified in the remand is attributable to [service-connected] anxiety disorder or to describe the functional impairments specifically attributable to his service connected anxiety disorder." The Appellant also provided a statement to the Board regarding the Veteran's condition over the years in August 2017. She described that the Veteran had a difficult recovery after his in-service gall bladder surgery and continued to have gastrointestinal symptoms throughout his life. These symptoms included diarrhea that sometimes required him to come home and change clothes during his shift when he was working. She related that these symptoms resulted in his anxiety, and asserted that his anxiety resulted in the Veteran's strokes. She also indicated that the Veteran's doctor stated that he should have been 100 percent disabled. After reviewing the foregoing evidence, the Board finds that the Veteran was not so disabled by reason of his service-connected disabilities that he was unable to secure or follow a substantially gainful course of employment. While it is true that the Veteran was severely disabled, this disability was the result of his heart condition and cerebral vascular accidents that rendered him wheelchair bound and unable to take care of himself, as discussed in the August 2008 letter from the Veteran's physician. In reaching this conclusion, the Board has considered the evidence regarding the Veteran's service-connected disabilities. However, the sum total of this evidence is that the Veteran himself denied impairments from residual symptoms of his gall bladder surgery and scar, and that his anxiety disorder, which caused him significant impairment in earlier eras, was a less relevant factor in his life after the onset of his cerebral vascular accidents in 2008 (which precedes the time period relevant to this appeal). The Board also takes this opportunity to address the evidence that the parties agreed in a November 2014 Joint Motion was somewhat contradictory before the Veterans Court, namely that the Veteran's anxiety disorder caused significant impairment but was not, evidently, the cause of the Veteran's inability to find and follow a course of substantially gainful employment. As discussed by the November 2016 VA examiner, the period where the Veteran's anxiety disorder caused him more significant impairment was decades ago, long before the time period relevant to this appeal and during a time period where the Veteran was gainfully employed as a police officer. Additionally, as the Veterans Court's precedent makes clear, there is no conflict between an acknowledgment that a particular service-connected condition causes significant impairment and a conclusion that a Veteran remains employable. See Van Hoose, 4 Vet. App. 361 (1993) (stating that a high rating itself recognizes the difficulty of finding and maintaining employment). Here, the Veteran's service-connected disability was rated 50 percent disabling, acknowledging that it impaired the Veteran. However, that acknowledgment does not dictate a finding that the Veteran's impairment from his disability rendered him unemployable during the period relevant to this appeal, and particularly where, as here, the evidence establishes that the symptoms and treatments of the Veteran's other (nonservice-connected) conditions combined to render his anxiety less relevant to his life. This conclusion is also consistent with the theory of entitlement advanced by the Appellant in her August 2017 statement. In that statement, the Appellant argues that the Veteran was entitled to a higher rating because the Veteran's anxiety caused or contributed to his strokes. This articulates a claim for service connection for the Veteran's strokes and not a claim that the Veteran's anxiety disorder itself impaired his ability to become or be employed. Notably, a claim for service connection for the Veteran's strokes was abandoned before the Veterans Court. Consequently, the Board finds that the Veteran is not entitled to TDIU, because the evidence shows that the Veteran was rendered unemployable by his nonservice-connected disabilities which cannot be considered in granting his claim. Van Hoose, 4 Vet. App. 361 (1993). In reaching this decision, the Board has considered the benefit of the doubt doctrine; 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to TDIU is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs