Citation Nr: 1306997 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 08-37 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board remanded this matter for additional development in November 2010. This development has been completed, as set forth in more detail below. FINDINGS OF FACT 1. The Veteran is service-connected for arthritis of the lumbosacral spine, rated as 20 percent disabling, and for hemorrhoids, for which a noncompensable rating is assigned. The combined rating is 20 percent. 2. The Veteran has a college education with an employment history as a recycling specialist/ 3. The Veteran's service-connected disabilities alone were not of such severity to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2010 that advised him of the criteria for establishing TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements. While the letter did not predate the initial adjudication of the claim, the RO essentially readjudicated the claim by way of a supplemental statement of the case issued in April 2012. Nothing more was required. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. The RO associated the Veteran's private treatment records and private medical statements with the claims file. Multiple personal statements are included with the claims file as well as a 2001 decision from the Social Security Administration (SSA) and the evidence it considered in making that decision. No outstanding evidence has been identified. A VA examination was conducted in August 2012 to address the TDIU question. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination was thorough, and well reasoned, and took into account the Veteran's personal history/complaints. The examination addressed the current nature of the disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). Further, 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 and Dingess, supra; Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); 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."). (CONTINUED NEXT PAGE) TDIU A TDIU is a rating, not a disability. It merely means that a veteran has met certain qualifications entitling him to a total disability rating. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.26 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. The Veteran's service-connected disabilities are arthritis of the lumbosacral spine, rated 20 percent and hemorrhoids, rated as noncompensable. His combined disability rating is therefore 20 percent. 38 C.F.R. § 4.25. The criteria for consideration a total disability rating under the provisions of 38 C.F.R. § 4.16(a) are not met. Consequently, the remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation. 38 C.F.R. § 4.16(b). The Board emphasizes that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. 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 under 38 C.F.R. § 4.16(b). Indeed, where, as in this case, a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Background Review of the record reflects that the Veteran has a college degree and worked as a recycling specialist. He has not been employed since 2001. (See, e.g., a September 2004 private treatment record.) The Veteran was treated for hemorrhoids during service and service connection has been in effect for that disorder for many years. A noncompensable rating has always in been in effect, and he has not received treatment for the condition in many years. He is also service-connected for a low back disorder. A 20 percent rating is in effect for this condition. Private records show that the Veteran had a cerebrovascular accident (CVA) in 2000. He was also in a motor vehicle accident (MVA) in March 2001 and had subsequent complaints of left-sided weakness and pain. At that time, he also reported some difficulty with his low back disorder which he related to an inservice injury. He said that he had been asymptomatic for many years until the car accident. Exam of the lumbar spine in 2001 revealed tenderness. X-rays showed some degenerative changes of the lumbar spine but no acute evidence of osseous abnormality. Their impression was of degenerative joint disease (DJD) and lumbar sprain/strain syndrome. Subsequent to the MVA, the Veteran was treated at private facilities, to include a private physical therapy center in 2001. His lumbar spine complaints continued. Upon VA lumbar spine X-ray in September 2001, no malalignment was noted. The lumbar disc space was normal in height. There was no significant spur formation seen, and there were no fractures or areas of bone destruction. The impression was of an unremarkable lumbar spine. The SSA awarded the Veteran benefits in a 2001 decision. It was determined that he became disabled for Social Security purposes in May 2001. The primary diagnosis was "late effects of CVA" and the secondary diagnosis was diabetes mellitus. Neither of the Veteran's service connected disabilities were identified. In March 2002, a private whole body scan showed no osteolysis. The left L4-5 articular facet was slightly sclerotic. The examiner's impression was of minimal degenerative changes in the lumbar facet. A private chiropractor noted in February 2003 that the Veteran had severe damage to his back. He said that X-rays showed disc lesions in the spine and degenerative arthritis. At a hearing regarding his low back in 2004, the Veteran discussed how his back problems had increased as he had aged. He now had pain walking, and he said that he now received SSA benefits due to his back problems. When examined by a private physician in September 2004, the Veteran gave a history of a stroke in 2000 and MVA in 2001. While he thought he had recovered from the stroke, he still had severe left-sided pain with weakness, trouble walking, and an inability to use his left hand. He said that he was told the pain was not related to the stroke. Orthopedic exam showed loss of range of motion (ROM) of the left hand. ROM of all other joints was normal by passive motion but there was some loss actively. Curvature of the lumbar spine was normal, and there was no crepitus, instability, deformity, or spasm. ROM of the thoracolumbar spine showed flexion to 90 degrees, with 30 degrees of extension, and internal and external rotation of 80 degrees. VA magnetic resonance imaging (MRI) in January 2005 showed mild degenerative changes of the lower lumbar spine. When examined by VA in July 2006, the Veteran had normal posture and gait. ROM of the thoracolumbar spine was 0 to 60 degrees of flexion with pain at 60 degrees; extension of 0 to 30 degrees; lateral flexion and rotation, bilaterally, of 0 to 30 degrees, respectively. There was no additional limitation of motion on repetitive use of the joint due to pain, fatigue, weakness, or lack of endurance. Sensory examination was normal. The examiner stated that the Veteran had a degenerative lumbar spine due to age and neuropathy due to diabetes. Private MRI of the lumbar spine in February 2009 resulted in an impression of Grade I spondylolisthesis at L4 on L5 with mild disc bulging and moderately severe facet arthritis producing canal encroachment and some foraminal narrowing at L4-5. There was minimal retrolisthesis at L5 on S1 with mild bulging and facet arthritis, but no obvious impingement at this level. Private MRI of the thoracic spine in February 2009 revealed spondylitic changes at C3-4 through C6-7 with some canal impingement at those levels, but no definite cord impingement. T6-7 showed a small right paracentral spur or protrusion producing slight thecal sac effacement. T7-8 showed a relatively small disc protrusion on the left, possible with some mild effacement, but with displacement of the cord, while T9 showed mild bulging producing some thecal sac effacement but no cord impingement. T9-10 showed some posterolateral disc protrusion bilaterally producing thecal sac effacement and on the right, this abutted but did not obviously efface the cord. In a May 15, 2012, document, a private physician, M.J.G., M.D., stated that he had evaluated the Veteran the day before. The claimant suffered from severe degenerative arthritis of the lumbar spine. He was very limited in his activities, to include even normal daily living functions. He had great difficulty in bending at the waist in all planes and could not walk very far without stopping to rest. He ambulated with a cane and it was his opinion that a wheel chair would be helpful. He further described the Veteran's condition as chronic and said that it would never improve. The Veteran would be restricted in his activities for the remainder of his life. Therefore, he opined that the Veteran was 100 percent unemployable for the remainder of his life. He could not even perform duties in a sedentary job position. Another private physician, D.B., M.D., reported in a May 24, 2012, statement, that the Veteran had been unable to work due to severe back pain. His back pain from DJD alone made it difficult for him to sit or stand for prolonged periods, and his mobility was affected. He opined that the Veteran was unemployable. The Veteran submitted a statement in 2012 in which he contended that he was unemployable due to the debilitating effects of his lumbar spine arthritis. This condition had affected his mobility, length of time that he could sit or stand, and his ability to rest peacefully at night. He had difficulty performing any task that required bending, and he felt that he was unemployable. When orthopedically examined by VA in August 2012, the examiner noted that the claims file was reviewed. The examiner noted that the Veteran had been diagnosed with old lumbar strain with age typical degenerative disc disease (DDD) and DJD. He also had been diagnosed with diabetes. Upon examination, ROM of the thoracolumbar spine included flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. There was no objective evidence of painful motion during ROM testing. There was no additional limitation of motion following repetitive use, and the only objective functional limitation shown during the examination was less movement than normal. There was no localized tenderness or pain to palpation of the musculature of the thoracolumbar spine, nor was there any muscle spasm or guarding. Though the Veteran had intervertebral disc syndrome, there had been no incapacitating episodes over the past 12 months, requiring bed rest as prescribed by a doctor. Moreover, the Veteran's thoracolumbar spine condition did not have any impact on his ability to work. The examiner further noted that the Veteran retired due to decreased vision and balance problems related to his diabetes. Analysis On review of the record, the Board finds that the lay and medical evidence of record preponderates against a finding that the Veteran is incapable of performing substantially gainful employment due to his service connected-disabilities. The Veteran has a college education and employment history as a recycling specialist. Also, as evidenced above, the SSA determined (in 2001) that his inability to be gainful employed was primarily due to residuals of a stroke with a secondary diagnosis of diabetes mellitus. VA is not bound by the conclusions of the SSA; however, in this instance, the Board finds it determination to be highly probative. The SSA's determination that the Veteran was unemployable was clearly based on non-service-connected disabilities. His back disorder was not even considered a significant factor. In support of his claim are two private physicians' May 2012 statements attesting to the fact that the Veteran is unemployable due to his back condition. Conflicting with the private physicians' opinions is a VA examiner's opinion from August 2012. It was his opinion, after examination of the file and evaluation of the Veteran, that the Veteran's thoracolumbar spine disorder had no negative impact on his ability to work. His opinion was corroborated by the examination conducted at the time which showed only slight to moderate residuals of the Veteran's lumbar spine degenerative joint disease. Indeed, while resulting in some functional impairment, his low back disability results in what would be best described as a moderate limitation of motion. Normal ranges of motion of the thoracolumbar spine are to 30 degrees in extension, to 90 degrees in flexion, to 30 degrees in lateral flexion, and to 30 degrees in rotation. 38 C.F.R. § 4.71, Plate V (2012). Moreover, the record is negative for any incapacitating episodes regarding the low back. His complaints of left-side weakness and neuropathy have instead been attributed to his nonservice-connected MVA and/or as residuals of his 2000 CVA. Hence, the overwhelming majority of the competent evidence shows that, if the Veteran is unable to work, it is due to nonservice-connected disabilities. While the private physicians 2012 statements have been considered, their opinions are not corroborated by the clinical findings in the record as the claimant's lumbar spine disorder shows no more than mild degenerative changes. The private physicians provided no rationale for their opinions. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). To the contrary, unlike the VA examiner, neither of these physicians cited to any testing data or clinical findings to support their conclusions. Emphasis is placed on the VA examiner's determination that the clinical findings gleaned from the examination did not support the conclusion that the Veteran's back disability precluded employment. The VA examiner's opinion was based on a review of the complete medical records and examination of the Veteran. Thus, it takes into account the medical evidence in favor and against the claim, and makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. The probative value of the opinions from the private examiners is also reduced by their failure to discuss the Veteran's significant nonservice-connected disabilities, which according to the SSA have rendered him unemployable. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the VA specialist who reviewed the record, to include the private physicians' statements. The Board acknowledges the Veteran's assertions that he is unable to work due to his service-connected disabilities. It must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent to report pain and limited motion due to his low back disability. He is also competent to report that his back disability impair his ability to work. However, providing an opinion that his back disability has rendered him unemployable requires a level of medical training that he does not possess. The Veteran's statements asserting that his service-connected disabilities (most notably his back disorder) alone prevent him from securing or following any substantially gainful employment are also inconsistent with the probative evidence of record. His claim for SSA disability benefits focused on the residuals of his cerebrovascular accident and diabetes mellitus, and the records considered by the SSA in making its determination made very little reference to his back disability. For the foregoing reasons, referral of the case to the Director of C&P Service for determination as to entitlement to a TDIU rating is not warranted. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs