Citation Nr: 1307516 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 06-04 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating determination by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Lincoln, Nebraska. The issue was remanded in January 2009, June 2010, May 2011 and August 2012 for further evidentiary and procedural development. As discussed below, the Board finds that there was substantial compliance with its remand directives; thus, it may proceed with a decision at this time. FINDINGS OF FACT 1. The Veteran does not have one disability ratable at 60 percent or more, nor does he have at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 2. The Veteran's service-connected disability ratings fail to meet the minimum percentage requirements on a schedular basis for a total disability rating based on individual unemployability due to service-connected disabilities and the preponderance of the evidence demonstrates he is not unemployable only by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.341(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). After careful review of the claims folder, the Board finds that letters dated in December 2004 satisfied the duty to notify provisions prior to the initial AOJ decision. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, the letter informed the Veteran of what evidence was necessary to substantiate his claim for TDIU to include on an extra-schedular basis. Specifically, the letter notified the Veteran in order to support his claim, the evidence must show that his service-connected disabilities are sufficient, without regard to other factors, to prevent him from performing the mental and or physical tasks required to get or keep substantial employment and he must meet the disability percentage requirement specified in 38 C.F.R. § 4.16 (i.e., one disability ratable at 60 percent or more OR more than one disability with one disability ratable at 40 percent or more and a combined rating of 70 percent or more). The Veteran was also informed of the evidence he should provide to support a claim for an extra-schedular evaluation based on exceptional circumstances. The letter notified the Veteran of his and VA's respective duties for obtaining evidence. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, VA examination reports dated in December 2005, August 2010 with a June 2011 addendum and September 2012, and lay statements from the Veteran and his spouse. The September 2012 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining oral history and an evaluation of the Veteran with respect to his service-connected disabilities. The examiner provided an opinion on whether the Veteran's service-connected disabilities alone rendered him unemployable and she provided a clear explanation for his opinion. Accordingly, the Board concludes that the examination is adequate for rating purposes. In addition, as noted in the Introduction, this claim was previously remanded in January 2009, June 2010, May 2011 and August 2012 for further procedural and evidentiary development. The Board remanded this issue in January 2009 to provide the Veteran elements of a claim for an extraschedular basis under 38 C.F.R. § 3.321(b)(1), as well as, the elements of a claim for a total disability rating under 38 C.F.R. § 4.340(a), to obtain outstanding treatment records from the VA Medical Center in Memphis from October 2004 through the present, to provide the Veteran with a VA examination and opinion and to consider entitlement under extraschedular consideration. The claims file contains treatment records from the Memphis VAMC from October 2004 and January 2009. The Veteran failed to appear at the scheduled VA examination. The November 2010 supplemental statement of the case considered whether the claim should be referred for extraschedular consideration. The Board remanded the claim again in June 2010 to send the February 2009 VCAA letter to the Veteran's current address and to schedule the Veteran with another VA examination and opinion. The Veteran was provided with proper VCAA notice in September 2009 that was sent to his current address of record. The Veteran was provided with a VA examination in August 2010; however, the examiner did not provide an opinion on whether the Veteran's service-connected disability causes marked interference with employment or an inability to follow substantially gainful employment. The May 2011 Board remanded requested that the examiner who conducted the August 2010 VA examination to provide an addendum with respect to whether the Veteran's service-connected disability renders him unable to obtain and follow a substantially gainful employment. A June 2011 addendum provided the requested opinion. The Board remanded the claim in August 2012 for another VA examination and opinion as the prior examiner did not address the Veteran's nerve impairment of the bilateral lower extremities, which were service-connected in May 2011, as part of the determination on whether the Veteran is unable to obtain or maintain substantially gainful employment due only to his service service-connected disabilities. A September 2012 VA examination and opinion answered the questions raised by the Board and it was supported by an explanation. Accordingly, the Board finds that there has been substantial compliance with the January 2009, June 2010, May 2011 and August 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. TDIU The Veteran filed a claim for total disability rating based on individual unemployability due to his service-connected hearing loss. 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. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a) (2012). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of non-service connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. In the present case, service connection is established for chronic back strain, rated as 20 percent disability; nerve impairment of the left lower extremity, rated as 10 percent; and nerve impairment of the right lower extremity, rated as 10 percent. The combined rating associated with his low back disability and related sciatica is 40 percent. See 38 C.F.R. § 4.25 (2012). His total combined disability rating is also 40 percent. The Veteran does not meet the schedular criteria for an award of TDIU pursuant to the provisions of 38 C.F.R. § 4.16(a). However, under subpart (b), a veteran can still be awarded TDIU if it is established by the evidence of record that service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation & Pension Services for extraschedular consideration. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b) (2012). The Board observes that the Veteran contends that he has been unable to find a job due to his back. He further asserts that he is unable to engage in physical labor, because insurance will not accept him. See January 2005 substantive appeal. The Veteran indicated in a July 2007 TDIU application that he did not leave his last job as a letter carrier in approximately 1995 due his low back disability. The Board notes that this is supported by prior statements made by the Veteran when he was seeking treatment at VA in July 1996. The Board notes that the reason for termination from his job with the post office in 1995 or 1996, while relevant, is not determinative of his current employment status as the evidence indicates that his service -connected back disability has worsened since that time. Contemporaneous medical evidence of record reflects that the Veteran is treated with pain medication for low back pain complaints. There is no mention of any problems with occupational functioning in such evidence. The record, however, contains a medical opinion, which directly addresses the Veteran's current employability. Unfortunately, this opinion does not establish that the Veteran is unable to secure or maintain substantially gainful occupation as a result of his service-connected disabilities. In this regard, the Veteran was provided with a VA examination in September 2012. The Veteran reported that he has flare-ups three times a week lasting the entire day, which are relieved with sitting down for a period of time or lying down flat. The Veteran regularly uses a cane. After obtaining an oral history from the Veteran and physically evaluating the Veteran, the examiner provided the opinion that based on the Veteran's previous job as a postal worker and having to ambulate and walk long periods of time, it is highly unlikely that the Veteran would be able to perform this type of physical labor due his bilateral sciatic nerve and low back strain. He explained that the Veteran stated that standing is worse than sitting. The examiner determined that the Veteran is employable and could obtain and sustain gainful employment in a sedentary job, but it is highly unlikely that the he would be able to do physical labor. The Board finds this opinion to be probative as the examiner provided a clear explanation for his opinion based on a physical evaluation of the Veteran and the evidence of record. The crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. The Board acknowledges that the Veteran's low back strain and bilateral lower extremity nerve impairment would make it difficult for him to obtain and retain certain types of employment, particularly those that require manual or physical labor; however, his service-connected disabilities are not so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment. Further, the evidence of record does not reflect that these disorders would render him individually unable to follow a substantially gainful occupation. The Board recognizes that the Veteran's service-connected disabilities would most likely preclude the Veteran from being letter carrier or any other physically demanding job. Nevertheless, his service-connected disabilities are not so severely disabling as to have rendered him unable to secure or follow substantially gainful employment, nor does the evidence of record reflect that these disorders preclude him from securing and following some form of substantially gainful employment consistent with his education and work experience. In this regard, there is no evidence of record indicating that the Veteran would be unable to work in a sedentary position or an office setting. In fact, the VA examiner September 2012 provided the opinion that the Veteran could obtain and sustain gainful employment in a sedentary job. Furthermore, the evidence of record indicates that the Veteran would be able to perform sedentary work based on his education and employment history. Specifically, the Veteran has four years of high school. See July 2010 TDIU application. The Veteran stated in the June 2008 notice of disagreement that prior to working as a letter carrier was a uniform clerk where he would issue uniforms to new employees. Moreover, as a letter carrier the Veteran jobs would have required knowledge that could be applied in an office setting, such as, bundling mail for mail delivery to include arranging mail in delivery sequence, holding mail for customers who are away, leaving notices telling customers where to collect mail that could not be delivered and maintaining records of delivery. The Board recognizes that the Veteran's wife asserts that the Veteran not only has severe back pain, he also has trouble breathing, he is permanently on heart medication and his bones are deteriorating. She provided the opinion that she cannot think of any occupation that he could successfully do with his conditions. His wife reported that at time it is even painful for the Veteran to sit due to his back pain. She also indicated that the side effects from his medication may also affect his ability to be employed. The Board finds that the Veteran's wife is competent to report that the Veteran experiences pain and that she feels that he would have a difficult time being employed successfully. However, the Board finds that her statements are not probative as to whether the Veteran is unemployable due to his service-connected disabilities as her statements included his service-connected, as well as, non-service connected disabilities. In this case, the Board finds that the Veteran's service-connected disabilities alone would not prevent him from completing a primarily sedentary occupation, which he should be able to obtain and maintain based on his education and prior work experience. Therefore, submission to the Director, Compensation and Pension Service for extraschedular consideration is not warranted at this time. As a preponderance of the evidence is against the claim of entitlement to a TDIU; there is no doubt to be resolved and this appeal must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a TDIU is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs