Citation Nr: 0812697 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 01-09 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from January 1977 to January 1980 and from January 1983 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU) ("TDIU claim"). The veteran disagreed with this decision in May 2004. He perfected a timely appeal in September 2004. In November 2004, the veteran requested a Board hearing which was held in October 2005. In December 2005 and in March 2007, the Board remanded the veteran's TDIU claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection is in effect for a cervical spine disability, evaluated as 60 percent disabling effective November 1, 2001; headaches, evaluated as 10 percent disabling effective February 11, 2000; and residuals of a head injury with a scar, evaluated as 10 percent disabling effective August 11, 2003. 3. The veteran's combined disability rating was 70 percent effective August 11, 2003. 4. Resolving reasonable doubt in the veteran's favor, the veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in December 2003 and January 2006, VA notified the veteran of the information and evidence needed to substantiate and complete his TDIU claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran to submit medical evidence showing that he was unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of these letters, and since the veteran's TDIU claim is being granted by this decision, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO also provided the veteran with notice of the Dingess requirements in August 2006 and April 2007. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the December 2003 letter was issued before the April 2004 rating decision which denied the benefit sought on appeal; thus, the notice was timely. Because the veteran's TDIU claim is being granted in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. The veteran contends that he is entitled to TDIU because his service-connected disabilities alone preclude him from securing or following a substantially gainful occupation. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the veteran is entitled to a TDIU, either his non-service-connected disabilities or his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veterans Court has held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service- connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. When he filed his TDIU claim in August 2003, the veteran stated that his service-connected cervical spine disability and headaches prevented him from securing or following any substantially gainful occupation. These disabilities had affected his full-time employment in January 2001. He had last worked full-time in January 2001 and became too disabled to work at that time. In an April 2003 letter, received at the RO in September 2003, S.C.S., M.D. (Dr. S.C.S.), stated that the veteran experienced neck, head, and back pain due to cervical disc disease and "could not do any gainful job." The veteran received regular VA and private outpatient for his service-connected cervical spine disability and for headaches and lumbar spine problems beginning in 2003. For example, in April 2004, the veteran complained of neck and head problems since an in-service head injury after being run over by a jeep. The private examiner reviewed the veteran's medical records extensively. This examiner stated that the veteran experienced constant headaches and constant slight neck pain extending in to the upper extremities with increased pain on use of the upper extremities, easy fatigability, and frequent dropping of objects. The veteran could only sit, stand, or walk for short periods. The private examiner also stated, " It is difficult to see how this patient could hold down a job requiring even minimal amounts of physical effort 8 hours a day, 40 hours a week." The diagnoses included status-post-operative anterior cervical fusion with possible non-fusion at C3-4 with residuals and headaches secondary to anterior cervical fusion. Following VA examination in August 2006, the VA examiner stated that, after reviewing the claims file, there was documentation of an in-service neck injury and an in-service back injury. The VA examiner opined that the veteran's complained of chronic neck pain was likely due to his documented cervical injury. The veteran also experienced intermittent tingling of the right upper extremity "which may be a mild residual radiculopathy due to his cervical pathology. His ability to work may be limited by the distraction of the pain and the reduced mobility of his neck especially if the job required considerable head turning." Following VA examination in September 2006, another VA examiner stated that, after reviewing the veteran's claims file, the veteran experienced minimal lumbar spine pain which could conceivably further limit function particularly with repetition. This VA examiner stated that the veteran did not have a diagnosed low back disability and it was less likely than not that the veteran's back pain was a result of his in- service head and neck injury. This examiner also stated that the veteran was not unemployable secondary to his back pain, although he could be limited in some of the manual labor and heavy labor jobs secondary to back pain. On VA outpatient treatment in March 2007, the veteran complained of a flare-up of his neck pain. Objective examination showed that the veteran appeared uncomfortable due to neck pain and tenderness to palpation and some prominence in the region of the occipital protuberance on the right. The VA examiner stated that the veteran appeared disabled for gainful employment. The assessment was an exacerbation of neck pain. In an August 2007 opinion, the VA examiner who saw the veteran in September 2006 stated that he had reviewed the veteran's claims file again and concluded that there were no abnormalities related to the cervical spine except for decreased sensation in the right neck. This examiner stated that the veteran's employability "may be limited by the distraction of pain and the reduced mobility of his neck." While the veteran might be unable to perform heavy lifting or other manual labor jobs, there were other jobs which the veteran could perform. This VA examiner concluded that the veteran's cervical spine and lumbar spine pathology "is not a limiting factor with regards to employability and it is certainly not disabling to this [veteran]." In a September 2007 addendum to the August 2006 VA examination report, a different VA examiner stated that he had reviewed the veteran's claims file and noted that the veteran had decreased range of motion in his neck due to his surgical cervical fusion. "The chronic cervical pain and the limited range of motion in head and neck turning will limit any work that requires head turning." This VA examiner stated that, since the veteran's in-service training as a dental technician required good neck mobility, he would not be able to perform that work and would be unemployable. This examiner also stated that the veteran might be able to tolerate desk work because the veteran could control his head movements and pain. This examiner opined, however, that his overall impression of the veteran was that "he would be unemployable for most jobs for which he has skills." As noted in the Introduction, service connection currently is in effect for a cervical spine disability (characterized as degenerative changes, disc bulge C3-4, C4-5, C5-6 with spinal stenosis, status post C3-4, C4-5, anterior cervical fusion), evaluated as 60 percent disabling, for headaches, evaluated as 10 percent disabling, and for residuals of a head injury with a scar on the left side of the head, evaluated as 10 percent disabling effective August 11, 2003. The combined evaluation for compensation is 70 percent effective August 11, 2003. Thus, the veteran meets the schedular criteria for TDIU effective August 11, 2003. See 38 C.F.R. § 4.16(a). Given that the veteran meets the schedular criteria for TDIU effective August 11, 2003, the critical issue in this case is whether he is unable to secure or follow a substantially gainful occupation solely as a result of his service- connected disabilities. See 38 C.F.R. § 4.16(a). The Board finds that the evidence is in relative equipoise on the issue of whether the veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. For example, Dr. S.C.S. stated in April 2003 that the veteran could not be gainfully employed due to his chronic head, neck, and back pain. Another private examiner stated in April 2004 that it would be difficult for the veteran to "hold down a job requiring even minimal amounts of physical effort 8 hours a day, 40 hours a week" due to his documented cervical spine disability and secondary headaches. After examining the veteran in August 2006, a VA examiner stated that the veteran's "ability to work may be limited by the distraction of the pain and the reduced mobility of his neck especially if the job required considerable head turning." By contrast, after examining the veteran in September 2006, another VA examiner stated that the veteran was not unemployable secondary to his back pain, although he could be limited in some of the manual labor and heavy labor jobs secondary to back pain. A third VA examiner stated in March 2007 that the veteran appeared disabled for gainful employment due to an exacerbation of neck pain. In August 2007, the VA examiner who saw the veteran in September 2006 stated that, while that the veteran's employability "may be limited by the distraction of pain and the reduced mobility of his neck" and might be unable to perform heavy lifting or other manual labor jobs, there were other jobs which the veteran could perform. This VA examiner concluded that the veteran's cervical spine and lumbar spine pathology "is not a limiting factor with regards to employability and it is certainly not disabling." Finally, in a September 2007 addendum to the August 2006 VA examination report, a fourth VA examiner concluded that the veteran's "chronic cervical pain and the limited range of motion in head and neck turning will limit any work that requires head turning" and the veteran "would be unemployable for most jobs for which he has skills." The Board finds that there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the TDIU claim. See 38 C.F.R. § 3.102. Resolving all reasonable doubt in the veteran's favor, the Board finds that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service- connected cervical spine disability and service-connected headaches and his TDIU claim is granted. ORDER Entitlement to total disability rating based on individual unemployability (TDIU) is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs