Citation Nr: 1800979 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-02 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This claim was previously before the Board in March 2017, at which time it was remanded for additional development. FINDING OF FACT The more probative and competent evidence of record preponderates against a finding that the Veteran's disabilities are of such a nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. § 1155 (2012); 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); 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 February 2010. 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 October 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 in April 2017 in order to issue the Veteran a supplemental statement of the case. 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 issued a supplemental statement of the case in October 2017. 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 essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially 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 the process of 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 include: (i) posttraumatic stress disorder (PTSD) (50 percent); (ii) sleep apnea (50 percent); (iii) mechanical low back strain (20 percent); (iv) left lower extremity radiculopathy (20 percent); (v) left shoulder acromioclavicular joint arthritis (20 percent); (vi) tinnitus (10 percent); (vii) bilateral sacroiliac joint arthritis (10 percent); (viii) bilateral hearing loss (zero percent);and (ix) recurrent right eye iritis (zero percent). The Veteran's combined rating for his service-connected disabilities was 70 percent, effective February 24, 2010. His combined schedular disability was 70 percent from August 24, 2010, 80 percent from December 8, 2015, and 90 percent from February 7, 2017. The Veteran completed four years of college. He reported that he owned a furniture store from 1982 to September 2008. He last worked full time in March 2009, which was also the date he became due too disabled to work due to his service-connected disabilities. The Veteran also reported that he started working part time as a substitute teacher in September 2009. The Veteran received a VA PTSD examination in October 2012 and indicated that he retired from his furniture business three years earlier when his family sold their building. However, he and his wife were stressed with finances, and the Veteran had been working part time driving a truck. The examiner noted that the Veteran's symptoms did not cause significant occupational impairment. The Veteran submitted a statement in October 2016 indicating that he worked as a substitute teacher only two days per week; if he tried to work more than that, he suffered stress and pain. The Veteran stated that it was harder for him to continue teaching, as it was not a sedentary job. He moved from room to room, and also the stairs aggravated his hip pain. The Veteran received a VA sleep apnea examination in March 2017, and the examiner noted that the Veteran was unable to drive long distances due to his daytime sleepiness. At his September 2017 VA shoulder examination, the Veteran indicated that his shoulder disability affected his ability to dress himself, and he could not open a door or put things on a shelf. Based on the examination, the examiner found that the Veteran's greatly decreased range of motion and pain in his left shoulder would greatly impact his ability to lift, reach or grab. The Veteran received a VA back examination in September 2017 and indicated that his back disability affected his lifting and walking. Upon examination, the examiner found that the condition affected the Veteran's walking, bending, and adducting his legs. The Veteran would not be able to work with bending, and this would limit work with twisting and lifting. Furthermore, the examiner noted that the Veteran would have trouble putting on his clothes and getting in and out of a car. The Veteran submitted a statement in November 2017 indicating that he was no longer teaching, as he could not handle the stress of being in the classroom any more. Here, the Veteran essentially maintains that his service-connected disabilities rendered him unable to maintain gainful employment. 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 his 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 that are 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, although the Veteran maintains he was unable to maintain gainful employment due to his service-connected disabilities, VA records do not ascribe an inability to work due solely to them. As noted above, the Veteran is college educated, and owned a furniture store for much of his occupational experience. His most recent occupation was as a teacher, and the Veteran indicated that it was physically demanding. The Board notes the Veteran's contentions that his teaching did not qualify as gainful employment because he only worked twice a week. He stated that the constant movement between classrooms and on stairs made it difficult to continue working as a teacher. There is no indication, however, that the Veteran would be precluded from sedentary employment. The Board notes that the Veteran suggested he could work more as a substitute teacher if it were more sedentary. While the record suggests that the Veteran's service-connected disabilities did affect his employability, the most competent evidence of record preponderates against a finding that he was unable to maintain gainful employment solely due to these disorders. (CONTINUED ON NEXT PAGE) 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 his claim that they are sufficient to produce unemployability. Although his 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 his service-connected disabilities, any such limitation is contemplated in, and is being adequately compensated by, the current disability rating assigned for these disorders. ORDER Entitlement to TDIU is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs