Citation Nr: 0810598 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 97-05 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from December 1951 to December 1955, and from January 1956 to July 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the benefits sought on appeal. When this case was before the Board in January 2006, it was remanded to the RO for further development. The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5103A. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2006). See also Robinette v. Brown, 8 Vet. App. 76 (1995). After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that additional development is needed prior to further disposition of the claim. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2007). 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 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. 38 C.F.R. § 4.16 (2007). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a); 4.19 (2007). Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In this case, the veteran has been granted a 40 percent disability rating for chronic lumbar sprain with multilevel degenerative disc disease, spondylosis and a history of residuals from a fracture of the left transverse process L-1; and a non-compensable rating for vasovagal syncopal spells. Accordingly, he does not meet the schedular requirements for a TDIU rating. The issue, then, is whether the veteran's service-connected disabilities nevertheless prohibits him from sustaining gainful employment, such that a TDIU rating may be assigned on an extraschedular basis. The veteran contends that he is unable to work due to his back disability. In statements in support of claim dated in May 1996, March 1997, and March 2000, he alleged that he could not work as a cabinet maker due to his back disability. He explained that he could hardly lift any weight, including materials used in cabinet making, and was barely able to walk requiring the assistance of a cane. The veteran underwent a VA spine examination in July 1996. He provided a history of two back injuries in service. He complained that he threw his back out at times and had difficulty with lifting. He had pain down his legs, but did not describe any sciatic or nerve root pain. The examiner opined that he had moderately advanced degenerative disc disease in all areas of the spine. Records from the Social Security Administration (SSA) reflect that the veteran has been unemployed since April 1995. He indicated that he had been self-employed as a cabinet maker since 1972 and that his earnings fluctuated depending on the construction business. During his August 1996 Social Security disability interview, he stated that he could do light home repairs and could walk only short distances. Walking, lifting, and ascending and descending stairs caused pain in his back and legs. He indicated that he earned his high school GED and some college credits. As a cabinet shop owner and maker by trade, his job duties consisted of obtaining jobs from contractors; laying out the work; buying materials; running the business; and training and supervising employees on the use of all machines, tools and equipment. However, he claimed that due to his back disability he was unable to performing the lifting required as a cabinet maker and was therefore unable to earn an income. In an October 1996 SSA Physical Residuals Functional Capacity Assessment report, the examiner noted that the veteran could occasionally lift about fifty pounds, twenty-five pounds frequently, and that he was able to stand, sit, and walk for six hours in an eight-hour work day. He had unlimited pushing and pulling capabilities. A November 1996 vocational analysis indicates that the veteran was able to perform a partial range of medium work. He could lift a maximum of fifty pounds and frequently lift or carry a total of twenty-five pounds. He could stand, walk, and sit a total of six to eight hours per eight-hour day, but could not do any stooping or crouching. The vocational analyst indicated that he had worked for fifteen years as a working owner of a cabinet shop which consisted of customarily skilled medium work that required no more than occasional stooping and crouching. The vocational analyst determined that he could return to work as a cabinet maker and had a favorable vocational outlook. In a March 1997 report, the veteran's private physician Dr. C. reported that he had chronic low back pain across his hips and down the back of the legs. His back and legs were weak and he was bothered by stooping, bending, and lifting. He also had some numbness. The physician completed a physical assessment of the veteran's ability to perform work-related activities and determined that he could only occasionally lift and carry eight to ten pounds. He could stand, walk, and sit no more than four to eight hours in an eight-hour day, and was able to do some reaching, pulling, and pushing. In August 1997, the veteran was granted disability compensation by the SSA for a back disability. The SSA noted that he was restricted to performing a full range of job- related activities at a sedentary level of exertion, noting that his past relevant work was performed at a medium to heavy exertional level. The SSA also found that the veteran was "more limited than originally thought." In March 1999 and October 2000, the veteran's private physician Dr. F. indicated that he treated him for five years for degenerative disc disease of the lumbar spine and opined that he was totally and permanently disabled. In June 2004, the veteran underwent a VA spine examination during which he used a cane to ambulate. He complained that he was in constant pain, but denied any flare-ups or any incapacitating episodes over the past twelve months. He reported that his low back pain radiated to his legs and that his symptoms prevented him from doing much stooping or bending and that he could not perform chores at home. The examiner noted that since he was retired and was not presently employed his back disability did not affect his daily work. The veteran also underwent a VA spine examination in February 2006. The examiner stated that he last worked in 1996 as the owner of a cabinet shop where he mostly did drawings. He presented with a recent left ankle fracture which occurred a month prior to the examination and he wore a brace. The examiner diagnosed chronic lumbar sprain with severe spondylosis and degenerative disc disease throughout the lumbar spine and a history of old fracture of transverse process of L1 on the left side. The examiner indicated that the veteran's complaints and symptoms included pain in his low back radiating into both buttocks and legs and weakness of the left leg for which he took medication. He indicated that his ability to walk was extremely limited and that he used a cane and could walk no more than one hundred yards due to balance, weakness, and instability. With respect to the effect on his employment, the examiner stated that since he has not worked in ten years, his back disability "does not affect that situation." The examiner opined that he would expect him to have an extreme limitation following repetitive use since he could barely get in and out of a chair or walk across the room. He had additional limitation during flare- ups which occurred twice a week during which he was confined to a bed. He had spasm, painful motion, and weakness. Additional functional limitation was speculative and was not indicated. In February 2006, the veteran also underwent a VA neurological examination for syncopal spells and other neurological problems. He then complained of getting lightheaded and passed out three to four times a month. It was also noted that he had some right-sided weakness and dragged his right leg. The impression was syncopal spells. In a VA spine examination addendum dated in September 2006, the VA examiner stated that the veteran's symptoms had remained unchanged from the February 2006 examination and that he had stiffness, pain on any movement, and repeatedly fell to the left. There was no change with respect to his functional impairment. The Board finds that an opinion is needed as to whether the veteran, solely as a result of his service-connected back disability and service-connected vasovagal syncopal spells, is no longer able to be employed as a cabinet maker, his usual occupation, or whether he is more generally unemployable. It does not appear that an examiner has yet been asked to render an opinion as to the overall effect of the veteran's service-connected disabilities alone on his ability to obtain and retain employment. In light of this, the prudent and thorough course of action is to afford the veteran a social and industrial survey on remand, to ascertain the impact of his service-connected disabilities on his unemployability. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an examination to ascertain the impact of his service-connected back disability and vasovagal syncopal spells on his unemployability. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. That review should be indicated in the examination report. The examiner must evaluate and discuss the effect of the veteran's service-connected disabilities on his employability. Specifically, the examiner should provide the following opinion: Is it at least as likely as not (50 percent or more probability) that the veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected back disability and service-connected vasovagal syncopal spells without consideration of his age or any non- service-connected disabilities? 2. Following completion of the foregoing, review the issue on appeal (including whether referral of the claim to the appropriate department officials under 38 C.F.R. § 4.16(b) for extraschedular consideration is warranted). If the decision remains adverse to the veteran, issue a supplemental statement of the case and allow the applicable period of time for response. Thereafter, return the case to the Board. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).