Citation Nr: 1145480 Decision Date: 12/13/11 Archive Date: 12/21/11 DOCKET NO. 01-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial, extra-schedular rating in excess of 40 percent for lumbar disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Appellant and C.B., M.D. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May to November 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2001 rating decision in which the RO, inter alia, granted service connection and assigned an initial schedular 20 percent rating for lumbar disc bulge with degenerative joint disease, effective November 21, 2000. In July 2001, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2001, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2001. By rating action of May 2002, the RO granted an initial, 40 percent schedular rating for lumbar disc disease with radicular symptoms, effective November 21, 2000; the matter of an initial rating in excess of 40 percent remained for appellate consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2002, the undersigned granted the appellant's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2002). In February and March 2003, the Board requested additional development of the claim on appeal pursuant to the provisions of 38 C.F.R. § 19.9 (2002). In June 2003, the Board remanded the matter to the RO for completion of the actions requested. At that time, it was noted that the provisions of 38 C.F.R. § 19.9, essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, had been held to be invalid. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). After taking further action, the RO continued to deny the claim (as reflected in a July 2003 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In October 2003, the Board denied an initial rating in excess of 40 percent for lumbar disc disease. The Veteran appealed the October 2003 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2004, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In July 2004, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After taking further action, the RO continued to deny the claim (as reflected in an August 2004 SSOC) and returned the matter on appeal to the Board for further consideration. In October 2004, the Board denied an initial, schedular rating in excess of 40 percent for lumbar disc disease, and remanded to the RO, via the AMC, the matter of an initial, extra-schedular rating in excess of 40 percent for the disability for further action, to include initial adjudication by the RO. After completing the requested action, the RO denied the claim (as reflected in a January 2005 SSOC), and returned this matter to the Board for appellate consideration. This appeal also arises from a December 2003 rating decision in which the RO denied a TDIU. In January 2004, the Veteran filed an NOD. An SOC was issued in November 2004, and the Veteran filed a substantive appeal in December 2004. In January 2006, the Veteran and a physician, C. Bash, M.D., testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing is of record. In April 2006, the Board denied an initial extra-schedular rating in excess of 40 percent for lumbar disc disease, and a TDIU. The Veteran appealed the April 2006 Board decision to the Court. In April 2007, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claims to the Board for further proceedings consistent with the joint motion. In November 2007, the Board remanded both claims remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a February 2010 SSOC) and returned these matters to the Board for further appellate consideration. In May 2010, the Veteran's attorney requested a 60-day abeyance period for submission of additional evidence and argument in support of the claims. In July 2010, the undersigned granted that request. No additional evidence or argument has since been received. In February 2011, the Board remanded both claims remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a July 2011 SSOC) and returned these matters to the Board for further appellate consideration. For the reasons expressed below, the matters on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part, is required. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. The rating for the Veteran's service-connected disc disease of the lumbar spine with disc bulge L4-5 and radicular symptoms is 40 percent, which is not sufficient to meet the minimal schedular standards for a TDIU. See 38 C.F.R. § 4.16(a) (2010). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b) (2010). A total rating, on an extra-schedular basis, may be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (per 38 C.F.R. §§ 3.321(b) and 4.16(b)). Hence, consideration of whether the Veteran is, in fact, unemployable is necessary in this case. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. During her April 2002 VA examination, the Veteran reported that following military service, it took her a year to find a job, and that after 2 months, she could only work part-time as a mentor and tutor because she was unable to sit, stand, and walk for prolonged periods. An October 2002 VA Contact Report indicates that the Veteran was contacted by a VA vocational rehabilitation counselor and advised that her vocational rehabilitation program had been interrupted because she had not been able to take the next steps as scheduled. She stated that she continued to have medical problems, was seeing an oncologist, was scheduled for surgery due to a gynecological condition, and would call after the surgery to update the counselor on her health and discuss alternatives at that time. A letter of October 2002 advised the Veteran that her vocational rehabilitation program had been discontinued effective that month because of her inability to begin a training program due to medical issues. On April 2003 VA neurological examination, the diagnosis was minimal degenerative disc disease with symptoms of radiculopathy. The doctor explained that the Veteran's pain had been incompletely medically treated, and poorly tolerated by her, to the extent that she was unwilling to seek any further medical treatment for it. The doctor explained that the employment that the Veteran had subsequent to military service was definitely non-strenuous work, which should have been very tolerable for someone with her degree of pathology, noting that the fact that the Veteran quit her job due to her pain was less a demonstration of incapacitation, and much more a demonstration of her pain hypersensitivity. August 2003 records from the South Carolina Vocational Rehabilitation Department include a psychological report and records related to a chronic pain management program that the Veteran participated in that month. The psychological report contained no diagnostic impression, and with respect to functional limitations, noted that the Veteran might be unable to perform specific job tasks due to physical limitations and an uncertainty regarding future employability. A physical therapy record noted that all flexion exercises increased the Veteran's pain complaints, and that she was limited to walking less than .125-mile per day. In regard to vocational limitations, the therapist noted that the Veteran physically tolerated a full day of activity for the 4-week evaluation period at the sedentary-to-light work level, but had significant time limitations in all positions. He added that the Veteran would need accommodations for no crouching, stooping, climbing, or crawling activities, and changed positions frequently between sitting, standing, and walking. On November 2003 VA examination, the Veteran complained of worsening back pain that was constant and radiated from the left low back down the posterior left leg to the toes, with weakness, but no numbness, in the leg. She stated that she could not sit for more than 20 minutes, stand or walk for more than 15 minutes, or bend, kneel, squat, or lie on her back or left side. She currently did not work, last having been employed in September 2003 as a tutor, mentor, and school aide for field trips. She stated that she currently could not perform that kind of work because of inability to walk or sit. On examination, the examiner's impression was that the Veteran had low back strain with non-significant imaging findings, with very significant evidence of symptom magnification. The doctor opined that the Veteran should be able to find and maintain gainful employment. The October 2005 Social Security Administration (SSA) determination showed that evidence received by SSA indicated that the Veteran's back disability caused some work related restrictions; however, it did not prevent the Veteran from performing all types of work. The SSA determination noted that the Veteran worked as a customer servant in the past; based on her description of the job responsibilities, her back disability did not prevent her from performing this type of work. Accordingly, SSA denied the Veteran's claim. At her January 2006 Board hearing, the Veteran testified that she had been unemployed for 4 years due to her service-connected back disability, that medication had provided some relief, that she used a cane but not a wheelchair, and that she lived by herself and could take care of herself and shop for herself, although she could not carry heavy items. Dr. C.B. testified that he had reviewed the Veteran's medical records with respect to her low back disability and examined her briefly, and opined that she was unemployable because of her service-connected back disability. In a January 2006 written statement, Dr. C.B. stated that he reviewed the Veteran's claims file and all medical records contained therein, and also examined her, and opined that her service-connected low back disability met the VA criteria for a 60 percent disability rating, and that she was unemployable, unable to obtain or maintain employment due to her service-connected back disability. In a March 2006 statement, a vocational rehabilitation counselor, opined that the Veteran's physical disabilities would prevent her from performing a sustained work day, either part-time or full-time, and that she would be a poor candidate for vocational re-training due to her service-connected disability and the resulting physical limitations. In addition, the vocational rehabilitation counselor opined that the Veteran would be impossible to place, in that her physical disabilities would prevent her from being competitive or desirable in the workplace. On those bases, the vocational rehabilitation counselor opined that the Veteran did not appear to be employable within the current competitive job market at a substantial, gainful level due to the handicapping effects of her service-connected disability. Her diagnosed impairment and resulting functional limitations (handicaps), combined with feasibility (suitability - availability and appropriateness of employment in the competitive labor market, aptitudes, and educational levels), had resulted in a disability which affected her ability to obtain and maintain suitable gainful employment. Pursuant to November 2007 remand instructions, the Veteran was afforded a VA examination in August 2008. The Veteran complained that she was unable to sit for more than 30 minutes, stand for more than 30 minutes, walk for more than 10 minutes, squat, or run. The Veteran reported that she had not worked since 2002; at that time she worked in a homework center for two months but was unable to keep up with the kids and do the walking the position required. On objective examination the physician's impression was chronic lumbosacral strain with significant evidence of symptom magnification. The physician noted that per the Veteran's report, she had significant activity limitations; however, the Veteran's limitations during the examination seemed to have liberalized since previous examinations. The physician explained that the Veteran's report of time limitation in activities, for instance inability to sit for more than 30 minutes, was purely subjective and not something that could be tested by an examining physician in the examination room. To that end, the physician explained that from a practical standpoint, the activity limitations as described by the Veteran, inability to sit for more than 30 minutes, stand for more than 30 minutes, walk for more than 10 minutes, squat, or run, certainly would make it difficult, if not impossible for the Veteran to obtain and maintain gainful employment. The physician reiterated documentation of symptom magnification. In a follow-up February 2010 VA examination report, the physician was asked whether the Veteran's inability to complete vocational rehabilitation in August 2003 was indicative of her lumbar spine disability resulting in marked interference with employment. The physician observed that review of the records showed that the Veteran did, in fact, complete her 4 week vocational rehabilitation program. The physician noted that a physical therapy note from August 2003 stated that the Veteran had time limitations in activities that would affect her choice and options in terms of employment; however, the physician explained this was consistent with his findings in the August 2008 VA examination report. The physician concluded, "It is my opinion that this does not indicate anymore than work was already evaluated and stated on my evaluation." As noted above, the Veteran does not meet the requirements for schedular consideration for a TDIU. However, the Board finds that the evidence, noted above, suggests that the Veteran is unemployable. The Board finds that this case meets the Bowling criteria for consideration of an extra-schedular rating because there are competent opinions that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disability. See Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001); see also 38 C.F.R. § 4.16(b). In Bowling the Court held that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration. Therefore, the Board finds that this claim must be remanded for additional development, to include referral of the claim to the appropriate first line authority to consider entitlement to a TDIU on an extra-schedular basis. As regards the claim for an initial, extra-schedular rating in excess of 40 percent for the lumbar disc disease, the Board notes that, pursuant to Thun v. Peake, 22 Vet. App. 111, 115 (2008), the determination as to whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three-step inquiry. If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Thun, 22 Vet. App. at 115. In the August 2008 VA examination report, the VA examiner noted the Veteran had significant activity limitations and concluded that from a practical standpoint, the Veteran's described activity limitations would make it difficult, if not impossible for the Veteran to obtain or maintain gainful employment. This and the other noted evidence of record suggests that the schedular criteria are inadequate for rating the lumbar disc disease and that the lumbar disc disease results in marked interference with employment or unemployability. Therefore, on remand, the claim should also be referred to the appropriate first line authority to consider entitlement to an initial rating in excess of 40 percent for lumbar disc disease on an extra-schedular basis. There is nothing in the claims file to suggest that the case was previously referred to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for consideration of the award of a TDIU and a rating in excess of 40 percent for the lumbar disc disease on an extra-schedular basis. Prior to referring the Veteran's claims for extra-schedular consideration, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The notice letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). After providing the required notice, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and her attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. The RO should also clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and her attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Thereafter, the RO should submit the claims for an initial rating in excess of 40 percent for lumbar disc disease and for a TDIU to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for extra-schedular consideration, pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b), respectively. 4 After accomplishing all requested action, as well as any additional action deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 5. If the benefits sought on appeal remain denied, the RO must furnish to the Veteran and her attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 6. . To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2010). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).