Citation Nr: 1303576	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  07-10 190A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to entitlement to an increased rating for compression fractures of T-12 and L-1, status post spinal fusion with femoral cutaneous hypesthesia, currently evaluated at 40 percent disabling.

2.  Entitlement to entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to October 30, 2009.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to July 1967.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which continued a 40 percent disability rating for the Veteran's spine disability.  The Veteran filed a notice of disagreement (NOD) with that decision in January 2007, and perfected his appeal in April 2007.

Additionally, in a March 2009 rating decision, the RO denied the Veteran a TDIU.  The Veteran filed a NOD with that decision in April 2009, and timely perfected his appeal in January 2010.  Subsequently, in a March 2012 rating decision, the Veteran was granted a TDIU, effective from October 30, 2009 (the day after the last day he secured gainful employment).  As the Veteran was not granted the full benefit sought, the issue that remains before the Board is whether the Veteran is entitled to a TDIU prior to October 30, 2009.  See AB v. Brown, 6 Vet. App. 35 (1993) (A Veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded).

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

In January 2011, the Board remanded the above stated issues to the RO for further action.  Regrettably, as outlined below, an additional remand is necessary before appellate review may proceed on the issue of an increased disability rating for a spine disability. 

The issue of entitlement to an increased rating for compression fractures of T-12 and L-1, status post spinal fusion with femoral cutaneous hypesthesia, currently evaluated at 40 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  In a March 2012 rating decision, the AMC awarded the Veteran a TDIU rating, effective from October 30, 2009.

2.  Prior to October 30, 2009, the Veteran was gainfully employed and thus his service-connected disabilities did not preclude him from securing or following a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for a total disability rating based on individual unemployability due to service-connected disabilities prior October 30, 2009, are not met.  38 U.S.C.A. §§ 1155, 5101, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.1(p), 3.115, 3.151, 3.155, 3.400, 3.341, 4.3, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the duty to notify was satisfied by way of letters sent to the Veteran in June 2008 and January 2009 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter.  The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence.  These letters also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).   

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained Veteran's medical records, and provided him with an examination in February 2011.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi,   16 Vet. App. 183 (2002).

II. Legal Criteria

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2012).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a) (2012).  Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000).

If there is only one service-connected disability, it must be rated at 60 percent or more.  If there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).  Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age.  38 C.F.R. §§ 3.341(a), 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Where the percentage requirements are not met, entitlement to TDIU may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, with consideration of the Veteran's background, including his employment and educational history.  38 C.F.R. §4.16(b) (2012).  The Board does not have the authority to assign an total disability rating for compensation purposes based on individual unemployability pursuant to 38 C.F.R. § 4.16(b) in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).

Generally, the effective date of a rating and award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012).  A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2012).  An informal claim is a communication or action indicating intent to apply for one or more benefits.  38 C.F.R. § 3.155(a) (2012).  VA must look to all communications from a claimant that may be interpreted as applications or claims, formal or informal, for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196 (1992).  In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b) (2012).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b) (2012).

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation.  38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997).  The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder.  Quarles v. Derwinski, 3 Vet. App. 129 (1992).  In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. §§ 4.2, 4.2 (2012).

III. Analysis

The Veteran claims entitlement to a TDIU prior to October 30, 2009.

The information of record reflects that on April 7, 2006, VA received a statement from the Veteran indicating intent to file a new claim for an increased rating for a thoraco-lumbar spine disability.  On May 23, 2006, VA received a statement from the Veteran noting that he had lost jobs due to his service-connected disabilities.  This additional statement, which was received within 1 year of the April 2006 claim, is sufficient to constitute a claim for increased compensation including a TDIU.  See 38 C.F.R. §§ 3.151, 3.155, 3.156(b).  As such, the May 2006 statement will be considered filed as of the date of receipt of the April 2006 claim.  See 38 C.F.R. §§ 3.151, 3.155, 3.160(f).  For purposes of this appeal, the Board determines that the date of receipt of the Veteran's claim for a TDIU is April 7, 2006.  Id; see also Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (defining a new claim for increase).

Having determined that April 7, 2006, is the date of receipt of the TDIU claim, the Board must now look to the record to determine whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to October 30, 2009.

Service connection is currently in effect for (1) fusion T-12 to L-1 with femoral cutaneous hypesthesia, rated 40 percent effective October 1, 1967; (2) depressive disorder, rated 10 percent effective March 21, 2007, and 30 percent effective April 29, 2009; (3) left leg radiculopathy, rated 10 percent from April 7, 2006 and 20 percent effective February 18, 2011; (4) right leg radiculopathy, rated 10 percent from April 7, 2006 and 20 percent effective February 18, 2011; (5) residuals of cerebral contusion, rated 0 percent effective October 2, 1967 and 10 percent effective April 29, 2009; (6) bone graft of left iliac area, rated 0 percent effective October 1, 1967; and (7) residuals of fracture of the left eighth rib, rated 0 percent effective October 1, 1967.

The combined ratings assigned for those disabilities were 40 percent, effective October 1, 1967; 50 percent, effective April 7, 2006; 60 percent, effective March 21, 2007; 70 percent, effective April 29, 2009; 80 percent, effective February 18, 2011; and a total disability rating, effective October 30, 2009.  Accordingly, the percentage criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) were first met on April 29, 2009.  As of that date, the Veteran had one disability that was 40 percent (spine disability), and his combined disability rating was 70 percent.

However, a TDIU is warranted under 38 C.F.R. § 4.16(b), on an extra-schedular basis, for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and who do not meet the percentage criteria of 38 C.F.R. § 4.16(a).  Accordingly, the criteria for submission of consideration for an extra-schedule TDIU is warranted if the evidence of record shows that from April 7, 2006, through April 28, 2009, the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities.

The Board finds that the preponderance of the evidence of record does not show that the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to October 30, 2009.  In fact, the evidence of record shows that the Veteran was gainfully employed until October 29, 2009, which was the last day he worked for his prior employers.

In a March 2012 rating decision, the Veteran established entitlement to a TDIU, effective from October 30, 2009.  In this regard, VA treatment records show that the Veteran was having difficulty at work due to his service-connected thoraco-lumbar spine disability, however, he was still employed.  At a June 2009 VA examination, the Veteran reported that he was working 70 to 80 hours a week in an attempt to retire his debts.

The Veteran submitted an application for increased compensation based on unemployability in December 2008.  He reported that he no longer worked for Kennedy Enterprises LLC, Gryphon Security Enterprises LLC, Intercept Security, Inc, and Monroe Community College as of October 31, 2009. The Veteran reported that his total earned income for the past twelve months was $32,000.

The record contains an October 28, 2009, letter to Gryphon Security Enterprises, LLC.  The Veteran informed his employer that he could no longer continue his job due to medical issues.  Additionally, he stated that his resignation was effective immediately.

Further, the record contains an October 23, 2009, letter to the Public Safety Manager of the Public Safety Department.  The Veteran informed his employer that his resignation was effective October 29, 2009 (last day of the last pay period of the month).  The Veteran reported that it was his intent to permanently retire from all work due to his medical condition.

The records contain a November 19, 2009, Articles of Dissolution of the Veteran's business, Kennedy Enterprises, LLC.

In a January 2011 letter, the Veteran indicated that he stopped working due to pain, mobility, and balance problems requiring his increased use of pain medications to function each day.  He was unemployed and unable to work since October 29, 2009, because he was no longer able to perform the duties required for Law Enforcement and/or Security.

The February 2011 VA examiner noted that the Veteran stopped working in October 2009 due to his service-connected thoraco-lumbar spine and lower extremity radiculopathy conditions.  These conditions caused increased absenteeism, and decreased his mobility, and his ability to lift and carry due to pain.  Additionally, his service-connected conditions affected his daily activities as they prevented him from doing any chores at home due to pain. 

As aptly noted above, the record shows that the Veteran was employed up to October 29, 2009.  A TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings above the poverty threshold.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim); 38 C.F.R. § 4.16.

The Board notes that the Veteran has submitted copies of his Federal Income Taxes (including Form 1040) for 2009.  The Federal Income Tax records for the year of 2009 reflect that the Veteran's income (wages/salaries $35,768; total income $62, 685; and adjusted gross income $62, 010) well exceeded the Bureau of the Census poverty threshold for that year.  The Board takes judicial notice that the poverty threshold was $11,161 (for one person under the age 65) in 2009.  See U.S. Department of Commerce, Bureau of the Census, Poverty Thresholds, http://www.census.gov/hhes/www/poverty/data/ threshld/; see also Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (Judicial notice may be appropriate for facts that are "not subject to reasonable dispute.").  Under these circumstances, the Board finds that the Veteran was considered gainfully employed until October 29, 2009. 

In summary, while it is clear that the Veteran's service-connected disabilities made it difficult for him to perform the mental and physical acts required for employment prior to October 30, 2009, the preponderance of the evidence of record does not show that his service-connected disabilities made him completely unable to do so.  Accordingly, the record evidence fails to establish that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation prior to October 30, 2009.  Accordingly, the criteria for a TDIU prior to October 30, 2009, are not met.  38 C.F.R. § 4.16(a)-(b).

In reaching this decision, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Therefore, the appeal is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).




ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to October 30, 2099, is denied.


REMAND

A review of the record discloses that further development is necessary prior to the adjudication of the Veteran's claim of an increased rating in excess of 40 percent for the thoraco-lumbar spine disability.

The Board notes that, in February 2011, the Veteran's was afforded a VA examination to assess the current severity of his service-connected thoraco-lumbar spine disability.  At that time, the examiner noted that the Veteran suffered from incapacitating episodes due to intervertebral disc syndrome (IVDS).  However, the VA examiner failed to document the number of weeks during the past twelve months that the Veteran had "incapacitating episodes," defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  This information pertaining IVDS is necessary in order for the Board to fully address the potentially applicable diagnostic codes and rate the Veteran's thoraco-spine disability appropriately.

Subsequently, in March 2012, the AMC attempted to contact the February 2011 VA examiner by email to request a clarifying opinion.  Specifically, the AMC noted that in order to properly rate the Veteran's thoraco-lumbar spine condition, the VA examiner needed to note the duration of the reported incapacitating episodes.  The definition of incapacitating episodes was then supplied to the examiner.  An undated hand written note on the March 2012 email print out stated that the doctor had not responded or read the above referenced email.  In addition, it was noted that the Veteran's treatment records were reviewed and there was no sign of bed rest/incapacitating episodes prescribed by a physician.  However, the claims file only contains VA treatment records through April 2010.  The Board is unclear what treatment records were reviewed or when the author of this note made the determination of the duration of incapacitating episodes the Veteran experienced in the past twelve months.  

Accordingly, because the February 2011 VA examiner did not address all of the pertinent manifestations of the Veteran's thoraco-lumbar spine disability, the examination report is currently insufficient for rating purposes.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994) (holding that a VA examination must contain reference to the pertinent criteria to be adequate).  Therefore, an addendum to the February 2011 VA examination report is needed before the Board may make an informed decision concerning this claim. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).

Additionally, the Board notes that a remand is necessary to obtain any outstanding VA treatment records.  As noted above, the record reflects that the Veteran was receiving periodic treatment for his spine disability.  Though the VA claims file contains VA treatment records through April 2010 and a June 2011 MRI report, it is unclear whether the Veteran sought treatment for his spine condition from April 2010 to June 2011, or continued to seek treatment after June 2011.  As these VA treatment records may contain information pertinent to his claim, they are relevant and should be obtained.  See 38 C.F.R. § 3.159(c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992).   

Accordingly, the case is REMANDED for the following action:

1) The AMC should obtain any available outstanding VA treatment records from April 2010 to the present.  Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file.  The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim.

2) The claims file should be returned to the VA examiner(s) who conducted the February 2011 VA examination (or, if unavailable, to another appropriate VA reviewer). 

In an addendum report, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

3) Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed.  In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

4) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issue of entitlement to an increased rating for compression fractures of T-12 and L-1, status post spinal fusion with femoral cutaneous hypesthesia, currently evaluated at 40 percent disabling, should be readjudicated.  If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review.  

The appellant has the right to submit additional evidence and argument on the matter 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. 2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs