Citation Nr: 1039940 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 05-08 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for Addison's disease, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty form March 1982 to June 1985. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Montgomery, Alabama, (hereinafter RO). The case was remanded for additional development in April 2008 and, as service connection for osteoporosis of the hips was granted by a May 2010 rating decision, the case is now ready for appellate review of the issues remaining on appeal. In September 2007, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2002). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. FINDINGS OF FACT 1. Addison's disease has not resulted in three crises during the past year or five episodes during the past year. 2. Service connection is in effect for migraine headaches, rated as 50 percent disabling; Addison's disease, rated as 20 percent disabling; osteoporosis of the hips, rated as 10 percent disabling, and hearing loss of the right ear, rated noncompensable; the service connected disabilities combine to a rating of 60 percent. 3. The Veteran reports education through four years of high school and additional education from a bible college; he reports employment as a youth pastor and a job with a pest control and lawn service and that he became too disabled to work in 1997. 4. Service connected disability, by itself, does not preclude the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for Addison's disease are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7911 (2009). 2. The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled in the instant case with respect to the claim for TDIU by letter dated in April 2003 prior to initial adjudication that informed the appellant of the information and evidence necessary to prevail with respect to this claim. With respect to the claim for an increased rating for Addison's disease, while the record does not reflect a notification letter that is fully compliant with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the notification provided to the Veteran in a letter dated in January 2005 and adjudications in June 2003 and August 2004 that included the applicable rating criteria was otherwise sufficient to substantially inform the Veteran of the information and evidence necessary to prevail with respect to the claim for an increased rating for Addison's disease. As for the duty to assist, the service treatment reports and VA and private clinical reports have been obtained, as have reports from the Social Security Administration (SSA). The Veteran was also provided with a VA examination in March 2010 that provided sufficient clinical evidence and opinion to determine the proper rating to be assigned for the Veteran's Addison's disease and whether the Veteran is entitled to a TDIU. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Legal Criteria/Analysis A. Addison's Disease Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The criteria for rating disability due to Addison's disease (adrenal cortical hypofunction) provide that a 20 percent rating is assigned for one or two crises during the past year, or two to four episodes during the past year, or weakness and fatigability, or corticosteroid therapy required for control. A rating of 40 percent is assigned when there are three crises during the past year, or five or more episodes during the past year. A 60 percent rating requires four or more crises during the past year. 38 C.F.R. § 4.119, DC 7911. Regulations [in Note (1)] stipulate that an Addisonian "crisis" consists of the rapid onset of peripheral vascular collapse (with acute hypotension and shock), with findings that may include: anorexia; nausea; vomiting; dehydration; profound weakness; pain in abdomen, legs, and back; fever; apathy, and depressed mentation with possible progression to coma, renal shutdown, and death. Regulations further stipulate [in Note (2)] that an Addisonian "episode," for VA purposes, is a less acute and less severe event than an Addisonian crisis and may consist of anorexia, nausea, vomiting, diarrhea, dehydration, weakness, malaise, orthostatic hypotension, or hypoglycemia, but no peripheral vascular collapse. Addison's disease was demonstrated and treated with steroids during service, and a September 1985 rating decision granted service connection for Addison's disease. A 20 percent rating was assigned, and this rating has been continued until the present time. This rating decision followed reports from an August 1985 VA examination that resulted in a diagnosis of asymptomatic Addison's disease since the Veteran was placed on steroid replacement therapy. More recently, reports from a May 2003 VA examination indicated that the Veteran treated his Addison's disease with Florinef and hydrocortisone. The physical examination at that time revealed normal muscle strength, stable blood pressure and no excessive pigmentary changes. The Veteran denied a history of crises manifested by peripheral vascular collapse. He reported that he generally increases his dose of steroids if any has any episodes of nausea or vomiting, and the Veteran stated that he been stable since steroid therapy, reporting that he felt better within one month of the in-service steroid therapy. The Veteran described easy fatigue and chronic gastric reflux which he attributed to his steroid therapy. He denied any malignancies or visual, neurologic or cardiovascular problems and reported a somewhat increased weight. The examiner concluded that the Veteran's Addison's disease was controlled by current steroid therapy, but that disability resulting from Addison's disease significantly decreased his ability to seek and maintain gainful employment. At a March 2009 VA examination, symptoms of Addison's disease were said to consist of fatigability, weakness, depression, irritability, headaches, pain, nausea, vomiting and diarrhea. Near constant pain in the abdominal muscles and joints was described. It was reported that there were no episodes of Addisonian "crises" as defined by the regulations reference above, but that the Veteran did have 5 "episodes" of Addison's as defined by regulation in the past 12 months. The physical examination results included no weight changes, normal muscle strength, no hyperpigmentation, and no hypogonadism. The examiner stated the Veteran's Addison's disease had significant effects on occupational activities due to decreased concentration and mobility, hearing difficulty, lack of stamina, weakness or fatigue and pain. The condition was said by the examiner to result in moderate impairment in the ability to perform chores, shop, exercise, play sports, engage in recreation, traveling, feeding, bathing, dressing, toileting and grooming. At a March 2010 VA examination, the Veteran reported that although his Addison's disease had not worsened, the side effects of medication had increased. He described symptoms of fatigability, depression, irritability, anxiety, excessive thirst, polyuria, headaches, change in vision, pain, nausea, and vomiting. Near constant muscle and joint pain was described and the Veteran reported frequent excessive thirst. Visual field loss was also reported. The Veteran reported no "crises" or "episodes" of Addison's as defined by regulation. The physical examination results included no weight changes, normal muscle strength, no hyperpigmentation, no hypogonadism and no other significant physical findings indicative of Addison's disease. The examiner stated the Veteran's Addison's disease had significant effects on occupational activities due to decreased mobility and pain, and the Veteran stated that the medication for Addison's disease rendered him incapable of working. Addison's disease was said to severely impact the Veteran's ability to perform chores, shop, exercise, play sports or engage in recreation and moderately impact traveling, feeding, bathing, dressing, toileting and grooming. The examiner stated that the Veteran's Addison's disease did not prevent the Veteran from obtaining or maintaining any form of employment consistent with his education and occupational experience. In order for the Veteran to be afforded a 40 percent rating for Addison's disease, the record must show, as defined by the regulations set forth above, three crises during the past year or five or more episodes of the condition during the past year. No Addisonian crises were reported at the March 2009 or March 2010 VA examinations, and no episodes of Addison's as defined by regulation were noted at the March 2010 VA examination. While the March 2009 VA examination noted that there were five episodes of Addison's in the past year as defined by regulation, as there is no contemporaneous clinical documentation of such incidents, it appears that this estimate was based on the Veteran's statement, rather than any objective evidence. A medical opinion is inadequate when it is unsupported by clinical evidence, Black v. Brown, 5 Vet. App. 177, 180 (1995), and a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Absent any contemporaneous clinical evidence of the five episodes of Addison's disease noted at the March 2009 VA examination, and given the examination finding the following year that there were no episodes of Addison's, the Board finds the weight of the evidence is against a conclusion that the Veteran has had five episodes of Addison's disease in a 12 month period as described by regulation. As such, the criteria for an increased rating for Addison's disease with application of the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, are not met. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." See Barringer v. Peak, 22 Vet App 242 (2008) The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluation is not inadequate. As indicated, a rating in excess of that currently assigned is provided for certain manifestations of the Veteran's service-connected residuals, but those manifestations are not present in this case, and the record, to include the Veteran's own history in this regard, does not indicate there were any post-service hospitalizations for Addison's disease. Moreover, the Board finds no evidence of an exceptional disability picture, as the service-connected residuals have not shown functional limitation beyond that contemplated by the 20 percent rating currently assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. Finally, in reaching the above conclusions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for an increased rating for Addison's disease, the doctrine is not for application. Gilbert, supra. B. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for migraine headaches, rated as 50 percent disabling; Addison's disease, rated as 20 percent disabling; osteoporosis of the hips, rated as 10 percent disabling, and hearing loss of the right ear, rated noncompensable. The service connected disabilities combine to a rating of 60 percent. As shown above, the service connected disability does not combine to 70 percent; as such, the service-connected disability does not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. The Board notes initially that the SSA has found the Veteran to be disabled since November 1996 under the guidelines of that agency. In its November 1999 determination finding the Veteran to be disabled, the SSA listed a back disorder as the primary diagnosis and Addison's disease as the secondary diagnosis. Notwithstanding the fact that the primary disability for this determination is not service-connected, the Board is not bound by the determination of the SSA. On a TDIU application filed in May 2003, the Veteran reported education through four years of high school and additional education from a bible college. He reported employment as a youth pastor and a job with a pest control and lawn service and that he became too disabled to work in 1997. Pertinent evidence of record includes a conclusion by a VA examiner following the May 2003 VA examination that the Veteran's Addison's disease and its complications "significantly decrease his ability to seek and maintain gainful employment." The record also reflects a May 2004 VA psychologist's opinion, said to have been based on a review of the medical records and evaluation of the Veteran, that the Veteran was "not employable nor is he feasible for vocational rehabilitation due to the severity of his physical problems and the poor prognosis for recovery." A conclusion following a May 2005 VA examination, at which time the Veteran's Addison's disease was said to be "[w]ell controlled" and "[f]ree of side effects and complications" was that the Veteran was not able to do any kind of job. In this regard, the Veteran reported having been unable to work since 1996 due to chronic neck and back pain. In describing the cause of the Veteran's loss of occupational functioning, symptoms of Addison's disease were not referenced. Finally, the reports from the March 2010 VA examination referenced above, which was documented to have included a review of the claims files, resulted in the conclusion that the Veteran's Addison's disease "does not prevent [the Veteran] from obtaining or maintaining any form of employment consistent with his education and occupational experience as a youth minister." Notwithstanding the assertions of the Veteran and his wife, to include in sworn testimony presented at the February 2006 and September 2007 hearings, a review of the record does not indicate to the undersigned that all employment is precluded solely due to service-connected disability. In this regard, the May 2004 opinion from a VA psychologist did not specifically report that service connected disability, by itself, rendered the Veteran not employable or feasible for vocational rehabilitation, as it was noted that the Veteran's unemployability was due to "physical problems." Moreover, while the Veteran was said to be unemployable by a VA examiner following a May 2005 VA examination, this was attributed to back and neck pain, rather than Addison's disease which at that time was said to be well controlled. Finally, the only VA opinion addressing the question as to whether the Veteran was unemployable solely due to Addison's disease rendered in March 2010 was that this condition did not preclude employment consistent with his education and occupational experience. In making this determination, the Board acknowledges that while service connected Addison's disease and its complications undoubtedly impact employment, perhaps even "significantly" as concluded by the VA examiner in May 2003, to conclude that all forms of employment were precluded by Addison's disease would not be reasonable given the March 2010 VA opinion set forth above. As was noted in Van Hoose: The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is 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. See 38 C.F.R. § 4.16(a) (1992). Van Hoose, 4 Vet. App. at 363. It is emphasized that only service-connected disability may be considered in determining whether the Veteran is entitled to TDIU, and the record reflects non-service connected disability, to include that involving the back (which the record reflects is principally the result of a 1996 motor vehicle accident) that has affected the Veteran's employment and that was the primary diagnosis for the award of SSA benefits. Such non service-connected disability cannot be considered in adjudicating the Veteran's claim for TDIU. Thus, in this case, as in Van Hoose, it is the Board's conclusion that all employment, even sedentary, has not been precluded due solely to the Veteran's service-connected disability. As such, the RO's decision not to refer this issue to the Director of Compensation and Pension Service for consideration of a TDIU was correct. In making this determination, the Board finds that the benefit of the doubt doctrine is inapplicable, and that the claim for TDIU must therefore be denied. See 38 C.F.R. § 5107(b); Gilbert, supra. ORDER Entitlement to a rating in excess of 20 percent for Addison's disease is denied. Entitlement to TDIU is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs