Citation Nr: 1801119 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-45 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from September 1951 to September 1953, to include service in the Republic of Korea. The Veteran was awarded a Purple Heart and a Korean Service Medal with Two Bronze Stars for his courageous and honorable service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 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 do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided a VA examination and neither he, nor his representative, has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. TDIU Total disability will be considered to exist 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. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell, 9 Vet. App. 237, 238-9; Floyd, 9 Vet. App. 88, 96. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer, 22 Vet. App. 242; see also Shipwash, 8 Vet. App. 218, 227. The Veteran's service-connected disabilities are residuals of a right tibia and fibula fracture rated at 40 percent disabling, residuals of a pelvis, scrotum and penis wound rated at 20 percent disabling, left wrist scar rated at 10 percent disabling, right ankle scar rated at 10 percent disabling, right lower extremity sensory loss rated at 10 percent disabling, and chronic right leg osteomyelitis rated at 10 percent disabling. The Veteran's combined rating is 70 percent and with one disability rated at 40 percent. As such, the Veteran meets the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. A review of the competent evidence of record, which includes the Veteran's VA treatment records, when taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment on account of his service connected disabilities. The Veteran filed a claim seeking TDIU in April 2011. He reported that he last worked in 1982 at his own hardware store owner. He indicated that he did not lose his job because of a disability. He indicated that he had a high school education. In August 2011, he reported that he last worked in hardware sales in 2006 and left his job due to his disabilities. In September 2011, he reported that the hardware business closed in 2006. In September 2011, the Veteran was afforded a VA examination for his service-connected disabilities. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner reported that the Veteran's residuals of a right tibia and fibula fracture resulted in decreased mobility and problems with lifting and carrying. The examiner reported that the Veteran's residuals of a pelvis, scrotum and penis had healed and had no effect on his ability to perform sedentary or physical work. The examiner reported that the Veteran's left wrist scar, right ankle scar, right lower extremity sensory loss, or chronic right leg osteomyelitis had no impact on his ability to perform sedentary or physical employment. The Board acknowledges that the Veteran is competent to report symptoms of his service connected disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disabilities according to the appropriate Diagnostic Codes or to assess whether the symptoms preclude employment. Ultimately, it is a rating determination as to whether the Veteran's multiple service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (emphasizing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,'" (quoting 38 C.F.R. § 4.10 (2013)) while the rating agency "is responsible for 'interpret[ing] reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present'" (quoting 38 C.F.R. § 4.2)) (modification in original). Here, the Board has reviewed all of the evidence of record, but concludes that the opinions of the VA examiner is the most competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Board does not wish to minimize the nature and extent of the Veteran's overall disability level, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they undoubtedly produce some, even significant, impairment, the evidence does not reflect gainful employment is precluded solely due to the Veteran's service-connected disabilities. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities, individually or in concert, preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU. The Board does not believe that the Veteran's service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment consistent with the findings provided by the VA examiner, that is in effect, sedentary work that does not involve lifting and carrying. As such, a TDIU is denied. ORDER A TDIU is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs