Citation Nr: 1301248 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 06-10 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and friends ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had less than two months of active service from January 1995 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the Veteran's application for TDIU. In August 2007, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The Veteran's claim was remanded for additional development in October 2007, August 2009, and May 2011. The requested development having been completed, the matter again is before the Board. In September 2012, the Veteran was notified that the Veterans Law Judge who conducted the August 2007 hearing was no longer with the Board. He was offered an opportunity to testify at another hearing. 38 C.F.R. §§ 20.707, 20.717 (2012). The Veteran failed to respond within 30 days as outlined in the letter. Therefore, the Board will proceed with adjudicating the Veteran's claim. FINDING OF FACT The Veteran fails to meet the schedular requirements for TDIU and his service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in January 2005 and March 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The letters informed the Veteran of what the evidence must show to establish entitlement to TDIU. He was informed of what evidence he should submit and what VA would attempt to obtain on his behalf. He was informed that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters further informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. In addition, the Veteran was provided with the evidence necessary to establish a total rating due to individual unemployability resulting from service-connected disabilities. The March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his TDIU claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, the Veteran was offered another Board hearing in September 2012, but he failed to respond. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of TDIU. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and post-service VA treatment records are in the file. The Board notes that the Veteran has indicated that he applied for benefits from the Social Security Administration (SSA), but that he was not found to be disabled and that such benefits were denied. As such, the Board finds that a remand to obtain any additional existing SSA records is not required. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA is not required to obtain SSA records in all cases but only where potentially relevant to the claims on appeal). Moreover, in May 2011 the Veteran indicated that he was applying for vocational rehabilitation through VA. It appears that subsequently the Veteran was included in a vocational rehabilitation program. The Board notes that such records have not been associated with the claims file, although the conclusions of a July 2011 VA vocational assessment examination were reproduced verbatim in an August 2011 VA examination report addendum. That said, in an April 2012 statement the Veteran indicated that he had been removed from the vocational rehabilitation program because he was unable to find transportation to reliably get him to the required classes. Also of significance, in that same April 2012 statement the Veteran conceded that he would be physically capable of performing sedentary employment. Given that the Veteran's statements clearly evidence that he was found physically capable of employment for the purposes of vocational rehabilitation and the Veteran's supporting assertions that he was able to perform sedentary employment activities, the Board concludes that any existing vocational rehabilitation records would not serve to support the Veteran's claim of unemployability for the purposes of his TDIU claim. As such, the Board concludes that a remand to obtain such records would serve no useful purpose or in any way benefit the Veteran in his claim. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). Private medical records identified by the Veteran have been associated with the claims file, to the extent possible. Furthermore, the Veteran does not claim there is additional evidence not of record that would help his claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examination in June 2010, with addenda in January 2011 and August 2011. The June 2010 VA examination report and addenda are thorough and supported by VA outpatient treatment records. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. Specifically, the examination report provided sufficient information to assess the current severity of the Veteran's service-connected disabilities and the affect these disabilities have on his employability. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examination and addenda in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on November 2007, September 2009, and May 2011 letters to the Veteran; the association of private treatment records from the Orthopedic Center of the Rockies and Medical Center of the Rockies; the September 2008 and June 2010 VA examinations; and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2007, August 2009, and May 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Entitlement to TDIU 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 (2012). 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) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, the Board notes that the Veteran's service-connected disabilities include a 20 percent rating for lumbar spine degenerative disc disease and facet arthropathy and a 10 percent rating for right lower extremity radiculopathy associated with his lumbar spine disability. His combined rating is 30 percent. Therefore, the Veteran's service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran reports that he has not worked since sometime between 1998 and 2000. Prior to that time period, he worked in several fast food positions since separation from service in 1995, as well as working for six months as a house painter in 2000. It is unclear precisely why the Veteran left those positions, although it appears to have been due to his ongoing back problems. The claims file also indicates that the Veteran applied for greeter and/or cashier positions at Home Depot and Walgreens in April 2010. The record does not indicate the reason that the Veteran did not obtain those positions. The Veteran does not have a high school degree or GED. As noted above, he asserts that he was removed from VA's vocational rehabilitation program because he was unable to attend training classes regularly, which the Veteran asserts was due to transportation problems. Having reviewed the record, the Board finds that the greater weight of probative evidence is against finding that the Veteran's case is outside the norm so as to warrant extraschedular consideration. The Veteran has contended that he should be awarded entitlement to unemployability, as his service-connected disabilities cause back pain with radiation, resulting in difficulties with extended sitting or standing. As noted above, the Veteran was afforded a VA examination in September 2008. Therein the Veteran discussed ongoing low back pain with radiation into the right lower extremity. On examination, the Veteran had some limitation of motion with pain at the endpoints of motion. The Veteran was afforded a TDIU examination in June 2010. At that time, the Veteran was unemployed. He had applied for some clerical/sedentary work, but indicated, "I don't do good with telemarketing." On examination, the Veteran had decreased motion of the lumbosacral spine, but displayed no muscle atrophy or decreased strength. X-rays showed minor degenerative disc disease from L3 to S1 and segmental straightening suggestive of muscle spasming. An MRI showed some spinal stenosis from L3 to S1. The examiner's assessment was degenerative disc disease and facet arthropathy of the lumbar spine. The examiner noted that the Veteran's disability would impact his ability to perform employment involving lifting, bending, twisting, or prolonged standing, walking, or climbing. Sedentary employment where the Veteran could get up and move around as needed would be the most optimal type of position. In addition, the examiner indicated that following neurosurgical treatment the Veteran's symptoms might be relieved to permit additional gainful employment options in the future. Following the grant of a 10 percent disability rating for right lower extremity radiculopathy, an addendum to the June 2010 VA examination report was obtained. The examiner stated that the additional disability of right lower extremity radiculopathy did not change her opinion as to employability. In summary, the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment in a sedentary occupation. A second addendum was obtained in August 2011. Following review of the claims file and medical records, including EMG studies and vocational assessment, the examiner indicated that it was at least as likely as not that the Veteran would be able to obtain or maintain some form of gainful employment. Again, the examiner indicated that sedentary employment that permitted the Veteran to get up and move around as needed would be optimal. VA treatment records show ongoing treatment for low back and right lower extremity problems. The most recent diagnostic testing of record, from February 2012, indicates that the Veteran's degenerative disc disease is unchanged or, if anything, mildly improved since the time of the June 2010 VA examination report and addenda. Right lower extremity complaints have been consistent since the June 2010 VA examination report and addenda. The Board notes there is no medical professional who has suggested that the Veteran is unable to maintain and follow substantially gainful employment as a result of his service-connected disabilities. Indeed, the June 2010 VA examination report and addenda clearly indicate that the Veteran is fully capable of maintaining sedentary employment, particularly in a position that would permit him to get up and move around as necessary to relieve any back pain. The Board acknowledges the Veteran's contention that his radiating back pain renders him unemployable. However, such symptomatology was considered by the VA examiner in rendering the above opinions that he is capable of maintain sedentary employment. Furthermore, although the Veteran can certainly describe symptoms, the Board finds his assertion that such symptomatology is so severe as to render him unemployable particularly problematic in light of the Veteran's own concession in other contexts that he is capable of performing sedentary work activities. As such, the Board finds his own contentions in support of this appeal regarding his overall employability lacking in credibility. In addition, as outlined above, 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) (1992). Van Hoose, 4 Vet. App. at 363. 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 disability. The Veteran has radiating low back pain that causes difficulty with extending sitting, standing, or climbing stairs. This back and right lower extremity pain is the basis for his current 20 and 10 percent disability ratings, respectively. Given the above, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, the preponderance of the evidence does not support his contention that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. Indeed, the most credible lay and medical evidence of record clearly demonstrates that the Veteran's service-connected disabilities do not preclude sedentary employment. 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 physical acts required by employment due solely to his service-connected disabilities, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. The Board concludes, therefore, that referral of this claim for consideration of a total disability rating on an extraschedular basis 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 v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs