Citation Nr: 1305014 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-41 154 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO in Sioux Falls, South Dakota, which, in relevant part, denied TDIU. The Board remanded this case for additional development in May 2011 and for referral for extraschedular consideration in May 2012. It returns now for appellate consideration. FINDINGS OF FACT 1. Prior to September 30, 2008, the Veteran was service-connected for degenerative disc disease and degenerative joint disease of the lumbar spine, rated as 20 percent disabling. 2. On and after September 30, 2008, the Veteran has been service-connected for two disabilities, degenerative disc disease and degenerative joint disease of the lumbar spine, rated as 20 percent disabling, and for a mood disorder with depressive features rated as 30 percent disabling, with a combined disability rating of 40 percent. 3. Both before and on and after September 30, 2008, the weight of the competent, probative and credible evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities even when his employment history, educational and vocational attainment, and all other factors having a bearing on the issue have been considered. CONCLUSION OF LAW The criteria for assignment of a total disability rating based on individual unemployability are not met, and individual unemployability on an extra-schedular basis is not warranted. 38 C.F.R. §§ 3.340, 4.16(a) and (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for TDIU. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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). 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. Id. Prior to initial adjudication of the Veteran's TDIU claim, a November 2008 letter fully satisfied the duty to notify provisions, including the elements necessary to establish TDIU. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical and vocational rehabilitation records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran's Social Security Administration records have been associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the 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 an appropriate VA examination in September 2011 encompassing both his service-connected spine and psychiatric disabilities. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no indication indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The September 2011 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this issue twice, in May 2011 and May 2012. The TDIU issue was remanded as inextricably intertwined with other issues in May 2011. Those issues were ultimately denied in the May 2012 Board decision. The TDIU issue is no longer intertwined with those issues and may be addressed. The May 2012 remand of the TDIU issue was to refer the issue of an extraschedular TDIU rating to the Director of the VA Compensation Service for an initial determination. See 38 C.F.R. § 4.16(b). The Director's office issued an August 2012 opinion that an extraschedular rating was not warranted. The Board finds that the RO complied substantially with May 2011 and May 2012 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. For the reasons that follow, the Board finds that the Veteran's service-connected disabilities do not meet the schedular criteria for TDIU and that he is not unemployable due to his service-connected disabilities even when his employment history, educational and vocational attainment, and all other factors having a bearing on the issue have been considered. The Board concludes that TDIU is not warranted on a schedular or extraschedular basis. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the claimant's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Prior to September 30, 2008, the Veteran was service-connected only for degenerative disc disease and degenerative joint disease of the lumbar spine, rated as 20 percent disabling. On and after September 30, 2008, the Veteran was awarded service-connected for a mood disorder with depressive features rated as 30 percent disabling, with a combined disability rating of 40 percent. The Veteran's combined rating is 40 percent on and after that date. 38 C.F.R. § 4.25. The Veteran does not meet the schedular criteria listed in 4.16(a) either prior to or on and after September 30, 2008. However, 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. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extraschedular consideration. The Board remanded this case for extraschedular consideration because of the Veteran's allegations of long-term unemployment. At the June 2008 VA spine examination, the Veteran reported he had not held a steady job for a longtime, that he used to work as a handyman, and stopped working in part because of his back problems. Approximately two months later, an August 2008 VA outpatient treatment record documented the Veteran's work history entailed odd jobs that involved manual labor and the treating physician opined that the Veteran was unemployable at that time because of back pain. The record also includes the September 2011 VA examination report which included an opinion that the sedentary employment was possible. In addition, during the pendency of the appeal, service connection was granted for a mood disorder with depressive features and that disability was noted to impact employment. The Director of the Compensation Service issued an August 2012 determination that an extraschedular rating was not warranted. The determination noted that the Veteran had been denied Social Security Administration disability benefits as he was not disabled for gainful activity. The determination reviewed the VA examination reports of record and the Veteran's vocational rehabilitation records. The determination emphasized that the most recent VA examination found the Veteran not incapable of functions that would allow him to secure and follow substantially gainful employment. The vocational rehabilitation records indicated that the Veteran was unable to return to his handyman occupation or related areas of employment, not that the Veteran was precluded from gainful employment generally. The Veteran alleges that his service-connected spinal disability renders him unemployable. His September 30, 2008, claim for TDIU makes clear that he alleges his spinal disability alone is enough for unemployability benefits and that a VA doctor, Dr. W., and VA have both found him to be unemployable. He stated that an August 22, 2008, statement from Dr. W. establishes his unemployability. He also stated that VA had arranged for a disabled parking permit for him because of his back. Review of the Veteran's VA treatment records show numerous notations of impaired movement. The August 2008 statement by Dr. W. is a primary care note contained in his VA treatment records. The Veteran had made an appointment because his representative told him to make a statement concerning whether his leg pain was related to his back disability and make a statement about his employability. The issue of radiating leg pain was addressed in the May 2012 Board decision where separate service connection for radiculopathy of the legs was denied. The August 2008 note states that the Veteran had a work history of doing odd jobs involving manual labor. There is no additional information regarding whether the Veteran was employable or not. Dr. W. completed a residual functional capacity questionnaire for the SSA in connection with one of the Veteran's claims for disability benefits. He indicated that the Veteran was able to walk one block, walk or stand for less than two hours, sit for about four hours, need to shift position frequently and had pain that would interfere with attention and concentration constantly. SSA benefits are based on residual functional capacity and do not inquire into whether a claimant retains capacity for any type of employment. Thus, the questionnaire leaves unanswered the issue of whether he is incapable of employment for any type of gainful job. The Veteran's VA treatment and vocational rehabilitation records contain additional assessments of the impact of his disabilities. At a June 2008 VA spine examination, the Veteran reported he had not held a steady job for a longtime, that he used to work as a handyman, and stopped working in part because of his back problems. He used a cane for balance. The Veteran began using the cane following an ankle fracture, for which service connection has been denied. The Veteran reported that he stopped working in part due to his back. The Veteran was denied VA vocational rehabilitation in April 2009 because employment was not reasonably feasible. The Veteran had not been employed in over ten years. His work history was as a self employed handyman. This work required him to be on his feet all day and lift and carry heavy objects. He was also required to climb ladders and bend frequently. The only other reported work history was as a laborer at a mill. This job required lifting heavy objects, being on his feet constantly and climbing into trucks. The examiner stated that the Veteran was no longer able to complete the duties of these jobs. The examiner indicated that the Veteran had a serious employment handicap to which his service-connected spinal disability contributed. The examiner stated that the Veteran had depression which was in control and that he had a good support system from family and friends. Although the Veteran was not service-connected for a mood disorder at that time, service connection was granted with an effective date prior to this evaluation. The examiner summarized the physical limitations as lifting no more than ten pounds, change of positions frequently, frequent breaks and limited standing and sitting, limited ability to handle objects, negative attitude toward the disabled by employers, unstable work history, the number of accommodations needed for employment, chronic pain, neuropsychiatric condition, alcohol abuse with treatment, and lack of education/training for suitable employment. In determining the extent of the employment handicap, the examiner also included the effects of a variety of non service-connected disabilities. The Board has already denied service connection for upper extremity weakness and pain, lower extremity weakness and pain, fracture residuals of the left ankle. The April 2009 opinion is thus limited in its probative value by the inclusion of additional non service-connected disabilities in determining the Veteran is unemployable. Following the determination of infeasibility, the Veteran was enrolled in vocational rehabilitation for independent living services in November 2009. The objectives included modifications to the Veteran's home to make it more assessable and increase the Veteran's socialization and communication skills by using the public computer at the local library. The Veteran needed training on computer use and setting up an email account. The Veteran was seen for a May 2009 VA examination where employability was considered. The Veteran claimed that he had not worked in ten to fifteen years. He reported living in a trailer provided by his brother and was on food stamps. He reported driving to the bar, post office, grocery store and his mother's home. He was using a cane for balance. He claimed that he had begun using the cane during recovery from a leg fracture three years prior. He had a wide based gait. When standing, he had difficulty putting his legs together. When asked to close his eyes while standing, he lost balance immediately. He reported having a GED. The examiner found that the Veteran would be employable for sedentary work. The Veteran had reported being able to sit for two to three hours at a time. The examiner indicated that some form of computer, phone or other desk job would be feasible with retraining. The examiner did not consider the GED or prior work history a barrier to retraining. The examiner concluded that the Veteran was employable in spite of his service-connected back disability. The Veteran's VA treatment records also showed that he requested a hospital bed, equipment modifying the toilet and shower stall and home ramp. Those requests were denied in July 2009 because his low back disability would not qualify him for these home modifications. The record also includes the September 2011 VA examination report which included an opinion that the sedentary employment was possible. At that time, the Veteran was able to drive, manage a computer, answer the phone and fix simple meals. He could take periods of rest or position change at home. The examiner conducting the spinal portion of the exam noted that the Veteran's complaint of pain seemed somewhat exaggerated as compared to his minimal findings on examination. The examiner noted that the Veteran refused to walk because of pain yet he demonstrated significant fluid range of motion while sitting in his wheel chair and moving arms and legs to put on socks and shoes. In the psychiatric portion of the exam, the Veteran was found to be generally functioning satisfactorily with normal routine behavior, self-care and conversation with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran has also applied for SSA disability benefits. He reports that he had been denied twice for these benefits which is supported by his SSA records. Although SSA determinations regarding unemployability and disability may be relevant in VA disability determinations, they are not binding on the VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). The SSA determinations were founded in large part on the Veteran's VA treatment records, with some additional expert medical opinions sought. The SSA is also not limited in considering only service-connected disabilities. That the SSA found him not disabled based on the totality of his disabilities weighs against this claim. Furthermore, the June 2009 denial supports the VA examination opinions mentioned above in that the Veteran was found capable of sedentary employment and was retrainable for that purpose. The objective evidence as to the severity of the Veteran's service-connected conditions does not show that the conditions would prevent him from being employed. The record is clear that the Veteran cannot return to his former employment as a manual laborer but it does not support a finding that he cannot return to any form of gainful employment when all the factors are considered. The Veteran insists that he is unemployable and cannot return to his former work as a handyman but these statements are assertions, not evidence. The Veteran has failed to provide a description of the impact of his service-connected disabilities on his employability. There is no indication from him that he attempted to change his field of employment to something more suitable for his service-connected disabilities. The medical evidence in favor of his claim consists of Dr. W.'s letter and assessment which did not restrict its consideration to service-connected disabilities and addressed the residual functional capacity test of SSA, not TDIU for VA. The vocational rehabilitation assessment included non service-connected disabilities in determining that employment was not reasonably feasible. The 2008, 2009, and 2011 VA examination reports do not find him unemployable either from his back or psychiatric disabilities. Importantly, the Veteran's possession of a GED was not considered insufficient educational background to retraining. He was successful in his vocational rehabilitation training in spite of his service-connected disabilities. In his description of his daily life, the Veteran lived and travelled around his hometown independently. The Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disorders or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, 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 on an extraschedular basis. 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 Entitlement to TDIU is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs