Citation Nr: 0811584 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 00-04 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date prior to February 14, 1990 for a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from October 1960 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In March 2001, the Board issued a decision denying effective dates prior to February 14, 1990, for a 60 percent evaluation for lumbosacral strain and TDIU. By order dated June 2002, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion vacating and remanding the Board's March 2001 decision. A November 2002 Board decision denied effective dates prior to February 14, 1990, for a 60 percent evaluation for lumbosacral strain and TDIU. By order dated December 2004, the Court affirmed the Board's decision with respect to an effective date prior to February 14, 1990 for a 60 percent evaluation for lumbosacral strain and vacated and remanded the Board's decision with respect to an effective date prior to February 14, 1990 for TDIU. In a September 2005 decision, the Board determined that the veteran filed a claim for TDIU on February 2, 1983 and remanded the issue of entitlement to an effective date prior to February 14, 1990 for TDIU. In November 2005, the Board granted the veteran's motion to advance his appeal on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900(c). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND As noted above, the Board determined in a September 2005 decision that the veteran filed a claim for TDIU on February 2, 1983. The RO assigned a February 14, 1990 effective date for the assignment of TDIU as it determined that it was not factually ascertainable that the veteran's disability increased in severity to warrant assignment of TDIU until February 14, 1990. The earliest effective date for the assignment of an increased rating is the date which it is factually ascertainable that an increase in disability occurred, if an application is received within one year. See 38 C.F.R. § 3.400(o). Therefore, the Board must examine the evidence from one year prior to the claim (February 2, 1982) to February 14, 1990 (the current effective date) to determine if it is factually ascertainable that an increase in disability sufficient to warrant the assignment of TDIU occurred at any point in this timeframe. In order to establish service connection for a total rating based upon individual unemployability due to service- connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed.Reg. 2317 (1992). 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). During the time period in question, the veteran's sole service-connected disability was lumbosacral strain, rated as 20 percent disabling. Therefore, the essential inquiry is whether the veteran's lumbosacral strain disability prevented the veteran from securing or following a substantially gainful occupation at any point prior to the current effective date. There are numerous statements from friends and relatives dated in the late 1970s and the 1980s which discuss their knowledge of the veteran's back problems. The letters state that the individuals in question either knew of the veteran's back problems and how these problems allegedly prevented the veteran from working or the letters demonstrate that the authors had witnessed the veteran having pain and other problems with his back that limited his physical activities. There are also several statements from potential employers noting that they could not employ the veteran because of his physical limitations. The record also includes statements from the veteran claiming that he could not work or care for his children because of his back problems. The record does not reflect that any of the individuals who wrote these statements have medical training or expertise. Although lay persons are competent to make statements regarding what they have witnessed (i.e. physical limitations), opinions regarding medical causation require medical skills and must be made by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As such, these statements are not competent medical evidence demonstrating that the veteran was prevented from engaging in substantially gainful employment solely because of his single service- connected lumbar spine disability during this time period. In other words, although the statements are competent evidence that the authors witness the veteran experiencing physical limitations, they are not competent evidence demonstrating that such physical limitations were 1) due to his service- connected lumbar spine disability and 2) so severe as to prevent the veteran from securing all forms of substantially gainful employment. The competent medical evidence during this time period includes numerous VA examination reports, treatment reports and x-ray reports as well as multiple private medical records dated from 1978 to 1990. These records show that the veteran was diagnosed with back strain, muscle strain, and degenerative disc disease of the lumbar spine. Although some of this medical evidence characterized the veteran's condition as "guarded" and "unfavorable" and contains radiographic evidence of degenerative disc disease and evidence of decreased deep tendon reflexes, the medical evidence for this time period also shows that on VA examination in April 1981, the veteran had no gross deformity of the back with no muscle spasm and only moderate limitation of motion. The April 1981 VA examination report notes that the veteran worked as a furniture refinisher but did not note that his back disability prevented him from performing the duties of this job. A March 1981 private medical record also notes the veteran's continued complaints of back problems but states that the physician advised the veteran to resume his usual activities. Additionally, the veteran was provided with an opportunity for a VA examination to clinically evaluate his lumbar spine disability and determine if the disability precluded all forms of substantially gainful employment, but the record reflects that the veteran failed to report for the examination scheduled for him in September 1988. In short, none of the contemporaneous competent medical evidence of record demonstrates that the veteran was prevented from engaging in substantially gainful employment solely due to his single service-connected lumbar spine disability during this time period. However, in March 2008, the veteran's representative submitted additional medical evidence and waived review of this evidence by the agency of original jurisdiction. This evidence consists of a November 2007 medical opinion from P. Carey, M.D., noting the veteran's medical records and stating "degenerative disc disease of the lumbar spine is a progressive malady often precipitated by a traumatic event. Based on the preceding evidence, it is my medical opinion that the patient's low back pain more likely than not caused his unemployability from 1983 through 1990. It is clear that he had physical and radiographic manifestations of lumbar disease as early as March 1981. Without appropriate treatment and or rehabilitation, it is highly unlikely that the patient's symptoms would improve to the point where he was employable." Thus, the Board finds that the medical evidence of record suggests that the veteran's disability may have been so severe from 1983 to 1990 as to preclude all forms of substantial employment. As VA has never addressed this question directly, the Board finds a VA examination is necessary in the present case. See McLendon v. Nicholson, 20 Vet.App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should arrange for the veteran's claims file to be reviewed by a medical professional, with particular attention paid to the November 2007 medical opinion from Dr. Carey and the medical evidence of record from 1981 through 1990. The medical professional should provide an opinion as to whether or not the veteran's lumbosacral spine disability precluded the veteran from obtaining and retaining all forms of substantially gainful employment from February 1982 to February 1990. Any opinion should be supported by reference to specific medical records on file. 2. When the foregoing actions are completed, the AMC/RO should readjudicate the veteran's claim. If the benefits sought on appeal are not granted to the veteran's satisfaction, the AMC/RO should issue a supplemental statement of the case where appropriate. Thereafter, the case should be returned to the Board, if otherwise in order. The veteran 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). 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). _________________________________________________ VITO A. CLEMENTI 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).