Citation Nr: 1805718 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 13-06 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability. ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1975 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matter was previously before the Board in May 2015 and was remanded for further development. FINDING OF FACT The Veteran's service-connected disabilities do not render her unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Notice 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) (2012); 38 C.F.R. § 3.159 (b) (2017). These notice requirements were accomplished in a letter sent in May 2014, prior to the adjudication of the Veteran's TDIU claim. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, post-service treatment records, and in providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the Veteran's VA treatment records and all private medical records have been associated with the claims file. Moreover, the Veteran was afforded VA examinations in December 2014, January 2015, and again in May 2017and October 2017, respectively, pursuant to the Board's May 2015 remand directives. As such, the Board finds that all necessary development has been accomplished and there has been substantial compliance with the prior Board remand such that further remand is not required and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993); See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned income." 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disabilities sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for several disabilities to include hysterectomy with removal of both ovaries at 50 percent, lumbosacral strain at 40 percent, migraine headaches at 30 percent, Meniere's syndrome at 30 percent, major depressive disorder at 30 percent, tinnitus at 10 percent, hypertension at 10 percent, and hysterectomy scar, left ear hearing loss, and costochondritis are all rated as non-compensable. The Veteran's combined disability rating is 90 percent disabling. Therefore, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) (2017). In the Veteran's VA Form 21-8940 dated December 2013, the Veteran noted that she quit working in July 2013 due to her service-connected back, depression, costochondritis, and other disabilities that were under appeal at the time. In response to her claim, the Veteran has been afforded several VA examinations for her service-connected disabilities. The evidence of record shows that while the Veteran experiences a degree of functional limitation related to her service-connected disabilities, they do not render her unemployable. For example, with regard to the Veteran's costochondritis, the Veteran received an examination for this condition in December 2014. While the Veteran claimed that the disability affects her ability to work due to increased absenteeism, the examiner found otherwise, noting that the Veteran's service-connected condition does not preclude her from obtaining or maintaining a gainful employment, and that the Veteran should always have medication nearby to avoid exacerbation of her symptoms. In the Veteran's January 2015 Mental Disorder Disability Benefits Questionnaire (DBQ), the examiner found that the Veteran's mental condition is stable and that her symptoms are not severe enough to interfere with the Veteran's daily activities. The examiner noted that the Veteran's major complaint was that her husband was still working while she is already retired. The examiner also noted that the Veteran had been living in Uruguay one year ago without any formal psychiatric treatment. Therefore, the examiner found that the Veteran's mental condition does not preclude the Veteran from social and occupational life. In December 2014, the Veteran received a VA examination for her lumbosacral strain, in which the Veteran reported that she has severe flare-ups daily for five minutes. The examiner found that the Veteran's back condition does not preclude the Veteran from obtaining or maintaining a gainful sedentary type of employment which does not require lifting, pushing, pulling or carrying more than 15-20 pounds of weight, doing overhead activities, prolonged standing or sitting. The examiner noted that the Veteran's medication should be nearby to avoid exacerbation symptoms. The Board notes that while the Veteran contends that a combination of her service-connected disabilities prevents her from working; this is contrary to the Veteran's statement in April 2013, in which the Veteran reported during a primary care visit, that her dizziness and migraines prevented her from working. She further reported that she has 3-4 episodes of migraines that she associates with stress in her work and that she has daily dizziness causing her to retire from work. Notably, the Veteran did not indicate that any of her other service-connected disabilities affected her ability to work, and the evidence shows that the Veteran's migraines and dizziness also do not prevent her from obtaining substantial gainful employment. With regard to the Veteran's migraines, the evidence shows that the Veteran complained of headaches beginning in the 1990s while in service, and was ultimately service-connected for the disability in April 2011, effective July 1997. Since her discharge from service, the medical evidence shows that the Veteran has had various complaints of headaches in which some have been associated with other medical conditions, but in any event, there is no medical evidence of record that suggests the Veteran's migraines prevent the Veteran from obtaining gainful employment. This notion was substantiated in the Veteran's September 2017 DBQ for headaches where the Veteran reported that her migraines impacted her ability to work by causing increased absenteeism from her job; however, the examiner found that the Veteran could perform light, sedentary, or semi-sedentary work with precautions to avoid any job stressors that could precipitate her migraines. Additionally, the examiner noted that the Veteran should always have her migraine medication nearby. Therefore, the Board finds that the Veteran's migraines do not prevent the Veteran from obtaining substantial gainful employment. Likewise, the Board also finds that the Veteran's dizziness does not prevent the Veteran from obtaining substantial gainful employment. In evaluating the evidence, the Board notes that the Veteran's complaint of dizziness also goes as far back as her time in service. In April 2009, the Veteran was admitted and evaluated due to complaints of dizziness and headaches. Upon discharge, she received potential diagnoses of Meniere's disease versus positional vertigo; however, the Veteran's dizziness was treated as vertigo with prescribed treatment of meclizine. While the Veteran's medical records reference treatment of Meniere's disease, the Veteran was ultimately diagnosed with this condition in her May 2017 DBQ. The examiner based his conclusion on the noted progression of the Veteran's left ear hearing loss, and that the Veteran has tinnitus and vertigo more than once weekly. As a result of the diagnosis, the Veteran was granted service connection for Meniere's disease and the RO evaluated the disability together with the Veteran's service-connected left ear hearing loss and tinnitus. With regard to whether the Veteran's Meniere's syndrome precludes the Veteran from obtaining substantial gainful employment, the Veteran reported that she cannot perform fast movements and that she has daily dizziness; however, there is no evidence of record that shows that the Veteran's dizziness precludes substantial gainful employment. In fact, the evidence shows that the Veteran's vertigo and Meniere's disorder have been treated with meclizine, and other complaints of dizziness were related to the Veteran's headaches and cervical pathology. The Board also notes that in the Veteran's May 2017 DBQ, she reported not having taken medication for her Meniere's disease in one year, which seems to suggest her symptoms have improved. With regard to the Veteran's hearing loss, the Veteran reported that she has difficulty understanding conversations in background noise. However, the examiner in her October 2017 hearing loss examination did not find that the Veteran's hearing loss and tinnitus affected the Veteran's ability to work. Further, the Veteran reported having hearing loss in her left ear for many years, but that she benefits from her hearing aids. Further, the Board notes that three months prior to the Veteran retiring in July 2013, the Veteran reported in a psychiatry visit that her dizziness and migraines contribute to her potential retirement; however, two months prior in a March 2013 psychiatry note, the Veteran reported that she wanted to retire, but did not report that any of her service-connected disabilities were the cause of her potential retirement. Likewise, in a March 2012 psychiatry note, the Veteran noted that she "hopes to retire" but did not indicate that her service-connected disabilities affected her current employment, or was the cause of her future retirement. In fact, the Veteran reported feeling much improved since her change in medications, and that her hearing has improved. Considering the evidence of record, the Board finds that the preponderance of evidence weighs against a finding of TDIU being warranted, as the evidence shows that none of the Veteran's service-connected disabilities, alone, or a combination thereof, prevent her from obtaining substantial gainful employment. The evidence shows that the Veteran's symptoms associated with her migraine headaches, costochondritis, hypertension, and back disability can be lessened and/or controlled with medication and does not preclude substantial gainful employment. The Board has also considered the Veteran's statements regarding her back disability that she is unable to sit or stand for long periods of time; however, as mentioned, the examiner found that her back condition does not preclude sedentary employment. The Board also notes that the Veteran's last job required her use of a computer all day which, in turn, would require the Veteran to sit a majority of the time; however, there is no evidence of record that the Veteran's back condition interfered with her employment, nor is there evidence that her back disability progressed or worsened to the extent that future substantial gainful employment is precluded. Likewise, there is no evidence that the Veteran's service-connected hysterectomy removal and scar, or symptoms associated with the Veteran's Meniere's disease precludes substantial gainful employment. Of note is that the Veteran has been service-connected for her disabilities for several years, even throughout the tenure of her last employment, except for her service-connected Meniere's syndrome. The Board acknowledges that the evidence shows various complaints and treatment of some of the Veteran's disabilities; however, there is no evidence of record that shows that any one of her service-connected disabilities prevented her from working, or has progressed and/or worsened to the extent that the Veteran would be forced to retire. Nor is there evidence that any other substantially gainful employment would be precluded. Moreover, given the Veteran's educational background of having two masters' degrees, and the Veteran's occupational history, her service-connected disabilities do not prevent her from engaging in sedentary work or some other type of substantially gainful employment commensurate with her educational level and work experience. As such, for the reasons discussed above, the Board finds that entitlement to a TDIU is not warranted as the preponderance of evidence is against a finding that the Veteran's service-connected disabilities prevent her from following or obtaining a substantially gainful occupation. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against a finding of TDIU. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs