Citation Nr: 1305097 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-43 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to an extension of a temporary total rating beyond April 30, 2009 based on convalescence following surgery for a service-connected cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and C. W. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2006 and October 2010 Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio rating decisions. The Veteran testified before the undersigned at an October 2012 hearing. A transcript of the proceeding has been associated with the claims file. The record reflects that after the final supplemental statement of the case (SSOC) the Veteran submitted additional relevant evidence to the Board. No subsequent SSOC was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran meets the percentage requirements for TDIU, as he has one service-connected disability of 40 percent or more and his combined service-connected disabilities are rated at 70 percent. 2. The evidence demonstrates that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. 3. As the Veteran has been awarded TDIU, the issue of entitlement to a temporary total evaluation beyond April 30, 2009, is rendered moot. CONCLUSION OF LAW 1. The criteria for entitlement to TDIU on a schedular basis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2012). 2. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to extension of a temporary total evaluation beyond April, 30, 2009. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein as to the TDIU issue, the Board finds that any deficiencies in notice as to this issue were not prejudicial to the Veteran. Entitlement to TDIU The Veteran claims that his service-connected physical and psychiatric disabilities render his unemployable. 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). 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) (2012). 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: adjustment disorder with depressed mood associated with C4-C5 and C5-C6, status post foraminotomy, rated as 50 percent disabling; C4-C5 and C5-C6, status post foraminotomy, rated as 30 percent disabling; status post surgical repair of the left fractured wrist, rated as 10 percent disabling; cervical radiculopathy with right upper extremity involvement associated with C4-C5 and C5-C6, status post foraminotomy, rated as noncompensable prior to May 1, 2009 and as 10 percent disabling from May 1, 2009; scar residuals, status post thoracotomy left lung, rated as noncompensable; and residual, surgical cervical scars, associated with C4-C5 and C5-C6, status post foraminotomy, rated as noncompensable. The Veteran's combined disability rating is 70 percent. Thus, the Veteran has a single disability rated as 40 percent disabling or more and his combined disability rating is 70 percent. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. Shortly prior to the appellate time period, the Veteran was afforded a VA examination in August 2006. The Veteran reported that he had worked as a Fed-Ex driver until January 2004, after aggravating his service-connected neck disability while adjusting a heavy load. Thereafter, the Veteran started work in April 2005 assembling golf clubs, but stopped shortly after starting to undergo cervical spine surgery. His treatment providers informed him after the surgery that he could not do overhead work involving neck extension, extending his right arm over his head, or using the right upper extremity to lift more than 15 pounds. The Veteran reported mild to severe functional limitation of activities due to his neck problems. Following examination, the examiner noted that the Veteran would be limited in jobs requiring extreme turning of the head, tilting the head to the right or extending backwards, or raising the right arm. The examiner noted that the Veteran would be able to work at a desk for extended periods and that there were many people with the same kinds of symptoms and physical disabilities as the Veteran who had found employment. In January 2007, the Veteran underwent a private psychiatric examination. Following examination, the physician diagnosed major depressive disorder (MDD) and adjustment disorder and assigned a GAF score of 49. He also underwent a March 2007 impairment examination as part of a claim for benefits from the Social Security Administration (SSA). The examiner assessed cervical degenerative disc disease / disc herniation / radiculopathy, as well as gastroesophageal reflux disease (GERD), hypertension, depression, and anxiety. On examination, there was cervical tenderness, muscle spasm, muscle weakness, and reflex changes. In an eight-hour workday, the Veteran would be able to sit for three hours and stand or walk for 2 hours. The Veteran's condition prevented him from sitting in a constant position at a computer for an entire day. On average, he would be expected to be absent from work more than three times per month. Other limitations included, psychological limitations, the need to avoid heights, and no pushing or pulling. The Veteran underwent a VA psychiatric examination in June 2008. He reported that he owned a small golf retail store. Business had been good the previous year, but this year had been slow because of his injuries and an extended winter. The Veteran discussed plans to expand his business by adding a driving range. The examiner diagnosed adjustment disorder with depressed mood and assigned a GAF score of 52. The Veteran currently was working part-time in his own business that he had started the previous year. He had difficulty motivating himself to go to work, but also expressed a desire to expand the business. His psychiatric symptoms resulted in a moderate impact on his occupational functioning, specifically with respect to productivity and reliability. In summary, the examiner concluded that while the Veteran's current symptoms had a significant impact on his occupational functioning, they did not appear to be severe enough to meet the criteria for individual unemployability. The Veteran underwent a July 2008 VA examination for his service-connected cervical spine, wherein he reported constant moderate neck pain. The examiner diagnosed degenerative disc changes of the cervical spine with radiculopathy. These problems had a significant effect on occupational functioning, specifically increased tardiness and absenteeism, the requirement to be assigned different job duties, problems with lifting and carrying, difficulty reaching, weakness or fatigue, and pain. The Veteran also had a July 2008 VA examination for his left wrist disability. The examiner diagnosed status post surgical repair of the left wrist, which caused significant effects to occupational functioning. These effects included, decreased manual dexterity, problems with lifting and carrying, weakness or fatigue, and pain. The Veteran also underwent a July 2008 VA examination for his right upper extremity. The diagnosis was right arm with right thumb and index finger numbness associated with right cervical radiculopathy. The problems resulted in significant effects on employment, including, decreased manual dexterity, lack of stamina, and weakness or fatigue. As to the Veteran's service-connected cervical disc disease, cervical radiculopathy, and left wrist disability, the examiner concluded that these disabilities precluded employment in any areas of hard physical labor, such as construction, carpentry, electrical, and plumbing work. The Veteran would be able to perform light office duty or administrative work, but with limitations on lifting and extended data entry and the ability to change positions frequently. The examiner concluded that such limitations rendered the Veteran essentially unemployable. The Veteran subsequently underwent a cervical fusion of C6-C7. This surgery appears to have improved his neck problems, as a June 2009 letter from a private physician noted "great progress" in the Veteran's condition and indicated that he could resume his activities as tolerated. A February 2010 private physician's letter, however, indicated that the Veteran would continue to experience a moderate amount of difficulty with his upper extremities that would limit his activities of daily living. A March 2010 VA treatment record noted that the Veteran continued to try to open a driving range. He was diagnosed with mood disorder due to general medical conditions and chronic adjustment disorder, with an assigned GAF score of 65. In July 2010, during psychiatric treatment the Veteran reported that he was seeking vocational rehabilitation to improve the marketability of his business. The treatment provider referred the Veteran to vocational rehabilitation. The Veteran was afforded a VA examination for his physical service-connected disabilities in January 2011. The examiner considered the Veteran's service-connected disabilities and concluded that the effect on his usual occupation would disallow the Veteran from heavy lifting, pushing, pulling or any activity that required neck turning. In addition, pain would make sleeping difficult, with resulting fatigue. In January 2011, the Veteran also underwent a VA psychiatric examination. The examiner noted that the Veteran had been unable to work successfully due to pain, emotional limitations, and nerve and neck problems. His psychiatric symptoms resulted in occupational impairment with reduced reliability and productivity. The examiner concluded that it was as likely as not that the service-connected psychiatric diagnoses in addition to the physical service and non-service connected disabilities in their totality caused functional impairment such as to render him to have total occupational impairment. In a June 2011 addendum, the examiner clarified that it was as likely as not that the service-connected psychiatric diagnoses in addition to the physical service connected disabilities in their totality caused functional impairment such as to render him to have total occupational impairment. The Veteran was in chronic pain and depressed. In support of his claim, the Veteran submitted tax records for the applicable years during the appellate time period. The Veteran's 2010 and 2011 tax returns showed no income from wages or salary. In the preceding years, the Veteran had filed joint returns with his now ex-wife that included significant income from salary and wages. The Veteran's individual Wage and Income Transcripts from the Internal Revenue Service (IRS) for those years, however, do not include income from wages or salary attributed to the Veteran. Thus, the evidence of record is mixed with respect to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In that regard, the Board notes that the July 2008 VA examiner concluded that the Veteran's service-connected orthopedic disabilities alone rendered him essentially unemployable. While the June 2008 VA psychiatric examiner concluded that the Veteran's service-connected psychiatric disability alone did not make him unemployable, the Board notes that this determination did not consider the Veteran's service-connected physical disabilities. In addition, although the January 2011 examiner initially concluded that a combination of the Veteran's service-connected psychiatric disability and service-connected and nonservice-connected physical disabilities rendered him unemployable, the June 2011 addendum clarified that the Veteran's service-connected psychiatric and physical disabilities alone rendered him unemployable. The Board finds each of these opinions to be of significant probative value, as each was based on consideration of the Veteran's contentions, records review, and physical and/or psychiatric examination. The Board has considered the VA treatment records wherein the Veteran reported his current and future plans for his custom-built golf club business. While these records do suggest some work in his small business, given that the Veteran's personal statements and tax records do not indicate that he received a significant income from this business during the appellate time period, such work would appear to constitute marginal employment as contemplated in 38 C.F.R. § 4.16(a). At the very least, the evidence is in equipoise. As such, the Veteran is entitled to the benefit of the doubt. In light of the multiple medical conclusions that the Veteran's service-connected disabilities render him unemployable, the Board finds the Veteran's service-connected disabilities render him totally disabled and incapable of gainful employment. Therefore, a total disability rating for compensation purposes based on individual unemployability is warranted in this case. Extension of Temporary Total Rating Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. The appeal on the merits of the Veteran's claim of entitlement to an extension of a temporary total rating beyond April 30, 2009, has become moot, as the above decision awarded the Veteran TDIU and would encompass the period of the requested extension of a temporary total rating. As the grant of TDIU means the Veteran is in receipt of a total disability rating from April 30, 2009, there remain no allegations of errors of fact or law for appellate consideration. Thus, the claim for an extension of a temporary total rating must be dismissed for lack of jurisdiction. See 38 U.S.C.A. §§ 7104(a), 7105(d)(5); AB, 6 Vet. App. at 38. (Continued on next page.) ORDER Entitlement to TDIU is granted. The issue of entitlement to an extension of a temporary total rating beyond April 30, 2009 based on convalescence following surgery for a service-connected cervical spine disability is dismissed. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs