Citation Nr: 1800947 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 08-38 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to March 1972. This matter initially came to the Board of Veterans Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In June 2012 and July 2014, the Board remanded the Veteran's claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the July 2014 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran does not meet the schedular rating criteria for TDIU and his service-connected disabilities do not prevent him from securing or maintaining substantially gainful employment. 2. The Veteran's service-connected disabilities do not warrant a referral to the Director of Compensation and Pension for extraschedular consideration for TDIU. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. § 5103 (a) (West 2012); 38 C.F.R. § 3.159 (b) (2017). VA's duty to notify was satisfied for the claim before the Board by letter dated September 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran. II. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided that 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2016). Nevertheless, it is VA's established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The question is 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107. Initially, the Board observes that the Veteran is service-connected for the following: bilateral pes planus with degenerative joint disease (50 percent disabling) and left ear infection (10 percent). Therefore, the Veteran's service-connected disabilities do not satisfy the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). Where a Veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16 (b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director of Compensation and Pension (C&P) for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). As the Veteran reported that he is unable to work due to service connected pes planus despite having a combined disability rating that does not meet the schedular requirements for TDIU, the Board must determine whether there is evidence that the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a TDIU is limited to consideration of service-connected disabilities and in this case, the disability awarded under Section 1151. . The first question to address here is whether the Veteran meets the criteria for a total rating under 38 C.F.R. §4.16(a) which provides that he be unable to secure or follow a substantially gainful occupation as a result of service connected (or compensated) disabilities provided that if there is only is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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. The Veteran does not meet these criteria as service connection is established for one disability: Bilateral pes planus with degenerative joint disease, rated as 50 percent disabling. The Veteran also receives compensation of 10 percent rating for residuals of an ear infection in the left ear as the result of an award of compensation under 38 U.S.C. §1151. His combined rating is 60 percent under 38 C.F.R. §4.25; he is not entitled to TDIU under 38 C.F.R. §4.16(a). The next question to be addressed here is whether the Veteran meets the criteria for a total rating under 38 C.F.R. §4.16(b) which provides that all veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a); under these circumstances, the case shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. Following consideration of the evidence in this case, the Board has determined that referral to the Director, Compensation Service is not required. For the Veteran to prevail, the Veteran must show that he is unable to secure and follow substantially gainful occupation by reason of service-connected disabilities. The record reflects that the Veteran worked post-service as a laborer in the post office. See August 2007 VA 21-8940 Application for Increased Compensation Based on Unemployability. The record did not indicate any report that the Veteran stopped working due to feet disabilities. It does show that he was let go from the Post Office 3 days after a car accident. He also reports that he has been medicated in the past and that the result of that medication prevents him from working. The record does not show that these medications were given for the treatment of his service connected disabilities. The has reported that he has one year of college and 5 months of computer training which was ended because he became ill. A close review of the Veteran's statements show that he has provided no particulars or detail about how his service-connected bilateral foot disability or his compensated left ear disability impact his ability to secure and follow substantially gainful occupation. In a December 2017 Feet VA examination, the diagnoses included bilateral pes planus (flat feet) with hallux rigidus on the left side. It was noted that flare-ups impacted his ability and during which he stated "I cannot walk for long period of time." He reported pain when he used the feet, pain when the feet were manipulated, no swelling, and no callouses. He has tried arch supports without relief. He does not have extreme tenderness of the plantar surfaces of the feet. He had no symptoms associated with hallux valgus. Prior surgeries were noted but date back to the 1980's. The Veteran reported pain in both feet when examined which the examiner noted contributed to functional loss. It was noted that the Veteran occasionally used a cane. It was remarked that the Veteran would not be equally well serviced by amputation with prosthesis. The examiner indicated that the Veteran's disability would not impact his ability to perform any type of occupational task such as standing, walking, lifting, sitting, etc. Similar finding were made when the Veteran examined in July 2017. At that time the examiner stated that the Veteran's pes planus does not impact the Veteran's ability to perform any type of occupational tasks and he does not have any functional limitation due to his feet. VA outpatient treatment notes from 2001 to 2017 have been reviewed and show occasional complaints of foot pain and swelling, but provide no insight into how these complaints affect his ability to secure and follow substantially gainful occupation. Additionally, the Board notes that the Veteran currently receives a 50 percent rating for his bilateral foot disorder under Diagnostic Code 5276. This is the maximum rating allowed for this disability. The Veteran's foot disability shows no symptoms for which he is uncompensated under this diagnostic code and the Veteran has not indicated that the scheduler rating for his bilateral foot disability is inadequate. The Veteran has made not statements regarding how his compensated left ear disability affects his ability to secure and follow substantially gainful occupation. The Board notes that the Veteran has made several statements regarding how he is prevented from working by hearing in the left ear. See statement of October 2017. The Veteran currently received compensation under Diagnostic Code 6201-7827 at the 10 percent level. The evaluation was assigned for recurrent episodes occurring during the past 12-month period that respond to treatment with antihistamines or sympathomimetics, or; one to three episodes occurring during the past 12-month period requiring intermittent systemicimmunosuppressive therapy. A review of the medical evidence associated with the left ear disability shows a note from a VA examiner regarding an examination of the Veteran's left ear dated in April 2017. The diagnosis was resolved left ear infection. It was noted that the Veteran's complaints of associated pain was due to temporomandibular joint disorder (for which service connection of compensation under 38 U.S.C. §1151 has not been established). A review of the records showed treatment with an antibiotic on one occasion but not symptoms attributable to Meniere's syndrome and there was no indication of inflammation or a chronic ear infection. It was determined the Veteran's ear had no impact on his ability to work. The Veteran has not submitted any medical evidence to show that his service-connected disability and the left ear disability, combined, affect his ability to obtain or maintain substantially gainful employment. His left ear disability is resolved, and does not meet the current criteria for the 10 percent evaluation he currently receives. A review of the VA examinations and treatment records similarly do not show such evidence. The Board finds that evidence of record is adequate for the Board to determine whether the case should be referred to the Director of the Compensation Service is warranted, and finds that such a referral is not warranted. In this case, the Board accords great probative weight to the noted VA opinions that show that neither compensated disability impact the Veteran's ability to work. Specifically, the VA examiners considered the full record, to include the Veteran's work history and complaints regarding the impact that the service-connected disability and the compensated disability have on the Veteran's ability to perform his employment duties. Moreover, the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, the Board assigns great probative value to the VA opinions. The Board notes that the medical evidence includes a letter from Dr. Reddy who wrote in March 2009 that the Veteran has cervical spondylosis, chronic low back pain, lumbar radiculopathy, and chronic foot pain. He noted the Veteran was also under his care for hypertension and diabetes and that the Veteran is unemployable and that his condition is permanent. This letter is of no probative value to the Veteran's claim. The list of disabilities which collectively impact the Veteran's employability includes disabilities for which service connection is not established. Dr. Reddy provides no information as to how the Veteran's service connected foot disability affects the Veteran's ability to work. Dr. Reddy does not speak to the issue of the left ear disability. The Board acknowledges the Veteran's statements during the March 2009 DRO hearing regarding his unemployability based on his feet disability. He testified that he was injured in a car accident in January 1987 and due to his whiplash injury and foot disability, he never returned to work. Based upon this testimony, the Board does not find that the Veteran is unable to obtain or maintain substantially gainful employment. While the Veteran describes the history of his inability to work, he does not describe why either of his compensated disabilities prevent his ability to obtain or maintain substantially gainful employment and thus his testimony is of no probative value. Finally, VA has reviewed medical records provided by the Social Security Administration. They appear to show that the agency determined the Veteran was disabled from November 1987 due to schizophrenia. Not secondary diagnosis was reported. The Veteran is not compensated by VA for schizophrenia and this disability cannot be considered in making the determination of whether the Veteran is capable of securing or following a substantially gainful occupation due to his service-connected disabilities. Based on all pertinent evidence of record, the Board finds that the Veteran is not incapable of securing or following a substantially gainful occupation due to his service-connected disabilities, and thus, a referral to the Director of Compensation and Pension for extraschedular consideration is not warranted. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected disabilities. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim for TDIU must be denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs