Citation Nr: 0814110 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-01 849 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from May 1972 to May 1974, from July 1974 to July 1976, and from November 1976 to August 1977. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2002 rating action, by the Jackson, Mississippi, Regional Office (RO), which denied the veteran's claim for a TDIU. He perfected a timely appeal to that decision. The veteran testified at a hearing before a Decision Review Officer (DRO) in April 2004. A transcript of that hearing has been associated with the claims folder. In September 2005, the Board remanded the case to the RO for further evidentiary development. In March 2007, the Board again remanded the case to the RO for still further evidentiary development. FINDINGS OF FACT 1. The veteran is service connected for residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 30 percent disabling; degenerative disc disease, lumbar spine, with left radiculopathy, status post left laminectomy, L5 associated with residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 20 percent disabling; and L5 left radiculopathy, associated with degenerative disease, lumbar spine, with left radiculopathy, status post left laminectomy, rated as 10 percent disabling. The veteran's combined schedular rating is 50 percent. 2. The veteran completed high school and has reported having two additional years of college. He has had occupational experience as a machine operator; he last worked full time in May 1994. 3. The veteran's service-connected disabilities do not preclude substantially gainful employment consistent with his education and previous work experience. CONCLUSION OF LAW The criteria for a total rating for compensation based on individual unemployability (TDIU) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.15, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In this case, VA satisfied its duty to notify by means of a letter dated in March 2002 from the RO to the veteran which was issued prior to the initial RO decision in May 2002. Additional letters were issued in June 2003 and March 2007. Those letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the August 2002 SOC, the November 2003 SSOC, March 2005 SSOC, the August 2006 SSOC, and the October 2007 SSOC provided the veteran with an additional 60 days to submit additional evidence. Even if the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. The veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. It also appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. As noted above, VCAA notification pre-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds violation of essential fairness to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in October 2006. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish a TDIU, given that the veteran has provided testimony before a Decision Review Officer (DRO) at the RO, and given that he has been provided all the criteria necessary for establishing a TDIU, we find that there has been fundamental fairness. II. Factual background. The veteran's application for TDIU benefits (VA Form 21-8940) was received in July 2002. The veteran indicated that he had completed four years of high school education; he also had two years of college. He further indicated that he has had occupational experience as a machine operator; he reported that he became too disabled to work in May 1994. The veteran is service connected for residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 30 percent disabling; degenerative disc disease, lumbar spine, with left radiculopathy, status post left laminectomy, L5 associated with residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 20 percent disabling; and L5 left radiculopathy, associated with degenerative disease, lumbar spine, with left radiculopathy, status post left laminectomy, rated as 10 percent disabling. The veteran's combined schedular rating is 50 percent. Submitted in support of the veteran's claim were VA progress notes dated from January 2001 through October 2002. These records show that the veteran received evaluation and treatment for chronic low back pain, radiculopathy, and left hip pain. On the occasion of a VA examination in March 2002, the veteran complained of chronic pain in the left hip and did use a walking stick for ambulation. It was noted that the veteran also had lumbosacral disc disease post surgery. The examiner noted that the symptoms overlap and it was difficulty for him to differentiate between the pain of the left hip as associated with the traumatic arthritis versus the radicular pain associated with the hip from his degenerative disc disease of the lumbar spine. It was noted that the veteran walked with a definite limp, using a cane and giving to his left extremity. The examiner noted that the veteran had pain in the left hip with ambulation, associated with his traumatic arthritis, and would be limited in doing activity that required extended standing or walking. However, the examiner stated that it would be difficult to make any statement concerning the degree to which the veteran had increased pain and fatigability as well as decreased range of motion as associated with flare-ups. VA progress notes dated from October 2002 through January 2004 show that the veteran continued to receive clinical evaluation and treatment for chronic low back pain, radiculopathy and left hip pain. At a personal hearing in April 2004, the veteran testified that he had chronic pain in the left hip. The veteran also testified that the pain in his left hip limited his ability to perform daily activities. The veteran indicated that he last worked in May 1994; he worked as an assembly line worker, which involved hooking up harnesses to be placed into cars. The veteran maintained that he was no longer able to do the job he previously did because of his hip and his back. The veteran reported that he was unable to do any job that required prolong standing, sitting, or any bending. The veteran was afforded a VA examination in April 2004. At that time, he was reported to be unemployed. It was noted that the veteran was able to walk a block with an occasional brief rest; and, he used a cane in his right hand. The veteran also reported a dull aching pain in the left hip when reclining, which limits his ability to walk or sit for any length of time. Following a physical examination, the veteran was diagnosed with mild osteoarthritis, left hip. The examiner noted the veteran's active and passive ranges of motion were the same. The examiner stated that he was unable to detect any objective evidence of weakness, incoordination, fatigability, or loss of motion due to the above. The range of motion was determined by pain. The examiner further noted that he was unable to estimate the range of motion, amount of pain, or functional capacity during a flare up without resorting to pure speculation. He noted the amount of arthritic change in the veteran's hip was minimal; therefore, he was surprised that the veteran's motion was limited as much as he demonstrated on the examination. VA progress notes, dated from January 2004 through July 2006, reflecting ongoing clinical evaluation and treatment for chronic low back pain, secondary to degenerative joint disease. The veteran was afforded a VA examination in April 2007, at which time it was noted that he was last employed in 1994; he worked on the assembly line for the auto company. Currently, he is not working. The veteran indicated that he was let go from the job because of his hip pain and the back pain. The examiner noted that, functionally, the veteran was independent in all basic activities of daily living skills. He is able to walk with a straight cane for a short distance. Any long distance walking would most likely provoke his flare of pain. He indicated that he can only walk approximately 50 feet or so; no physician has prescribed complete rest in the past 12 months. The impression was traumatic degenerative joint disease of the left hip secondary to the injury, mild to moderate degree; and degenerative disk disease and degenerative joint disease of L-S spine status post lumbar disckectomy, L5-S1, with the radicular pain, mild to moderate in severity. The examiner opined that the current severity of the medical condition of the left hip and lumbosacral spine are sufficient enough to preclude the veteran from returning to his previous occupation; however, they should not preclude him in any other occupation opportunity that would not cause over physical exerted activity to his low back and hip. III. Legal analysis. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service- connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has stated: In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's non-service- connected disabilities nor his advancing age may be considered. See 38 C.F.R. § 3.341(a) (2007); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task was to determine whether there are circumstances in this case apart from the non- service- connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 [percent] combined disability rating. See 38 C.F.R. § 4.16(a) (3007). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The veteran has a high school education as well as two years of college. On his formal TDIU claim, he reported that he last worked in May 1994; he indicated that he has had occupation experience as a machine operator. The veteran has established service connection for residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 30 percent disabling; degenerative disc disease, lumbar spine, with left radiculopathy, status post left laminectomy, L5 associated with residuals, chip fracture, left hip, with minimal traumatic arthritis, rated as 20 percent disabling; and L5 left radiculopathy, associated with degenerative disease, lumbar spine, with left radiculopathy, status post left laminectomy, rated as 10 percent disabling. The veteran's combined service-connected disability rating is 50 percent. 38 C.F.R. § 4.25 (2007). The evidence does not reflect that the veteran has a single disability or a combination of disabilities that results in a 100 percent schedular evaluation or that he has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. Therefore, he does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Nonetheless, the Board must consider whether the claim should be referred for assignment of a total rating on an extraschedular rating. The question raised by 38 C.F.R. § 3.321(b) and § 4.16(b) is whether there are unusual circumstances, peculiar to this veteran, which prevent him from having the usual amount of success to be expected in overcoming the handicap of his service-connected disabilities. In this case, the Board finds no such unusual circumstances. While the record indicates that the veteran may have some pain and functional impairment caused by his low back and left hip disabilities, the Board concludes the veteran is not unemployable due to his service-connected low back and left hip disorders. The veteran claims that his service-connected low back disability, radiculopathy, and left hip disabilities prevented him from performing the tasks required to maintain employment. Significantly, following a VA examination in April 2007, the VA examiner noted that the current severity of the medical condition of the left hip and lumbosacral spine are sufficient enough to preclude the veteran from returning to his previous occupation; however, the examiner did not indicate that the veteran's disabilities precluded him from all substantial gainful employment. The examiner specifically stated "his current severity of his medical condition of the left hip and lumbosacral spine are sufficient enough to preclude him from returning to his previous occupation. Should not precluded him in any other occupation opportunity that would not cause over physical exerted activity to his low back and hip." There is no medical evidence of record that his disabilities preclude him from any substantial gainful employment. Finally, the mere fact that the veteran is not working, and has not worked for many years does not equate to a showing of disability due to service-connected disabilities. In this case, the preponderance of the evidence is against finding that the veteran's service-connected disability makes him unemployable. There is no evidence showing that his service-connected conditions are of such severity as to preclude substantially gainful employment. In Van Hoose, the Court noted, 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) (2007). In this case, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extra- schedular consideration of a total disability rating based on the veteran's service-connected disabilities. Again, no medical professional has indicated that the veteran's service-connected disabilities have rendered him unemployable. The veteran's service-connected disabilities may affect his abilities to some degree, but there is no evidence that his service-connected disabilities prevent him from being able to perform light or medium duty work, or some other type of substantially gainful employment as a result of his condition. Rather, there is evidence that the disabilities should not preclude occupational opportunity that would not cause "over physical exerted activity to his low back and hip." Accordingly, in the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence is against the veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service- connected disabilities, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. The Board concludes, therefore, that a total disability rating for compensation purposes based on individual unemployability is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER A total rating for compensation on the basis of individual unemployability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs