Citation Nr: 1307775 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-03 046 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from February 1942 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The matter has since been transferred to the jurisdiction of the Indianapolis, Indiana RO. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. The Veteran is service connected for residuals of a cold injury of the upper and lower extremities, each extremity rated as 30 percent disabling; and a low back sprain with degenerative joint disease, rated as 20 percent disabling. The combined rating is 90 percent. 3. With consideration of service-connected disability only, the Veteran is not incapable of securing or following a substantially gainful occupation consistent with his work experience in management and as a personnel director. CONCLUSION OF LAW The criteria for entitlement to a total disability rating due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, in a December 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for a TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, lay statements, and VA examination reports and medical opinions. In summary, VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Additionally, VA examination was conducted that provided findings necessary to address the issue on appeal. Consequently, VA has complied with the duties to notify and assist. Analysis In order to establish a total disability rating based upon individual unemployability (TDIU) due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service connected for residuals of a cold injury of the right and left upper and lower extremities, each rated as 30 percent disabling; and a low back sprain with degenerative joint disease, rated as 10 percent disabling prior to December 3, 2009 and as 20 percent disabling from December 3, 2009. His combined rating is 90 percent. See 38 C.F.R. § 4.25. Thus, the Veteran meets the schedular requirements for a TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a). (Disability of a common etiology qualify as one disability for purposes of determining whether a veteran meets the provisions of § 4.16(a).) Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. In a November 2008 rating decision, the St. Louis RO granted service connection for residuals of a cold injury for the right and left upper and lower extremities, increased the previously assigned noncompensable rating for a back disability to 10 percent, denied claims for service connection for bilateral hearing loss and tinnitus, and apparently inferred a claim for a TDIU and deferred a decision on the matter. A December 2008 VCAA letter from the RO asked the Veteran to complete and return an enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not respond, and the RO enclosed another VA Form 21-8940 with a January 2009 follow-up letter. The Veteran did not respond, and the claim was denied in a February 2009 rating decision. In May 2009, the Veteran's representative submitted a notice of disagreement on the Veteran's behalf, asserting that the Veteran did not believe any employer would hire him with his severe service-connected cold injuries and back disability. The representative stated that the Veteran was unemployable due solely to his service-connected disabilities, which result in great difficulty with gripping, driving, standing, and walking for long periods of time. The RO issued a statement of the case regarding TDIU in September 2009. In correspondence received in December 2009, the Veteran requested an "extension of the sixty-day file date" and notified the RO that he had moved to Indiana. A January 2010 deferred rating notified the Indianapolis RO that the December 2009 correspondence had been accepted as a substantive appeal. In an April 2010 letter, the Indianapolis RO acknowledged the Veteran's December 2009 correspondence as a substantive appeal and asked him to clarify whether he wanted to appear before a member of the Board for either a Travel Board or video conference hearing. The Veteran did not respond to the letter. At an April 2010 VA spine examination, the Veteran described having a dull low back pain present the majority of the time that increased during flare-ups caused by overexertion. Examination of the spine revealed decreased range of motion without pain. There was no pain, fatigue, weakness, lack of endurance, or incoordination following repetitive motion. Sensory examination of the upper and lower extremities, motor examination, and reflexes were reported as normal. A May 2010 report of general information reflects that the Veteran indicated that he wanted to withdraw his appeal for a TDIU. He was advised to submit the request in writing. In subsequent correspondence he did not specifically withdraw the claim. In correspondence dated in June 2010, the Veteran stated that he believed his representative in Missouri had filed a claim for benefits due to a military low back disability, but it was not until the fall of 2009 that he learned that the claim was for a TDIU. He stated that he had been retired for 27 years at the time. The Veteran was afforded a VA general medical examination in December 2012. Reported signs and symptoms of cold injuries included cold sensitivity, numbness, and locally impaired sensation of the bilateral upper and lower extremities. The lower extremities also had nail abnormalities. On examination of the hands, there were no abnormal findings. On examination of the feet, there was significant decrease in sensation to light touch, vibration, and temperature changes to the toes; there was mild great toenail thickening; skin color was normal; strength in feet was normal; and there was a decrease in hair on the ankles bilaterally. The Veteran declined having additional x-rays performed, and the examiner did not believe that new x-rays were critical. X-rays of the right hand, right foot, and left foot from 2008 revealed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. A 2008 x-ray of the left hand revealed osteoarthritis. The examiner noted that the left hand degenerative changes were likely post traumatic because the Veteran reported having had an injury to his left hand many years ago when he caught it in some sort of machine. The Veteran also indicated that he had consistently used a walker to steady himself since having a stroke in July 2011. Regarding his low back disability, the Veteran reported that his back pain was sometimes 3-4/10, but could go up to 5/10 at times. He stated that activity and bending or increased movements aggravated his low back pain. Range-of-motion testing revealed decreased motion without objective evidence of pain on motion. Following repetitive motion, the Veteran had pain on movement. The examiner determined that the Veteran did not have functional impairment of an extremity (including grasping and manipulation for the upper extremities and balance and propulsion for the lower extremities) such that no effective function remained other than that which would be equally well served by amputation with prosthesis. The Veteran stated that he worked in "middle management" and as a personnel director when he was last working. He reported that numbness and tingling in his hands and feet would sometimes decrease his ability to focus or concentrate at work. He believed he was fortunate not to have to work outside in the weather extremes as he believed this would have been a problem for him. He also indicated that ongoing pain in his back would often decrease his range of motion and ability to tolerate activity or concentrate while at work. After reviewing the claims file and examining the Veteran, the examiner noted that the Veteran was 94 years of age and there were obviously many limitations regarding his employability based on his age and general health status. Nonetheless, when considering only his service-connected disabilities, the examiner believed they would not prevent the Veteran from being able to work in any capacity. Instead, the examiner believed the low back disability and cold injury residuals would cause a mild to moderate impairment to working in both a sedentary and physically demanding capacity. She added that occasionally, the low back disability might cause a severe limitation to performing a physically demanding job, but not the majority of the time. The preponderance of the above-noted evidence is against a finding that the impairment from the Veteran's service-connected disabilities is so severe that he cannot follow a substantially gainful occupation. The December 2012 VA examiner described the degree of impairment the Veteran would generally face in both a sedentary and physically demanding employment setting due to his low back disability and cold injury residuals, but concluded that the disabilities would not prevent him from being able to work in any capacity. The Board finds that the opinion of the December 2012 VA examiner is persuasive and probative evidence against the claim for a TDIU because it is based on a review of the claims file, physical examination, and supported by a medical rationale that is consistent with the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The record contains no opinion to contradict these findings. In reaching the decision to deny the claim, the Board has considered the lay statements submitted by the Veteran and by his representative on his behalf. While the Veteran's representative has asserted that the Veteran is unemployable due solely to his service-connected disabilities because they cause great difficulty with gripping, driving, standing, and walking for long periods of time, the Board observes that the medical and lay evidence generally does not support this contention. Rather, the Veteran has indicated that he requires the use of a walker most of the time after he had a stroke; however, he has not described or been shown to have great difficulty gripping. Also, while x-ray findings revealed left hand osteoarthritis, it was attributed to an old traumatic injury. In addition, the Veteran reported that his cold injury residuals sometimes decreased his ability to concentrate at work and that his back pain often decreased his range of motion and ability to tolerate activity or concentrate while at work. However, the Veteran himself has not asserted that these limitations rendered him incapable of obtaining or maintaining gainful employment either in the past or at present. Notably, the Veteran indicated in June 2010 that he had been retired for 27 years at the time he learned that a TDIU claim had been filed on his behalf, and he has not reported attempting to obtain any employment since his retirement. These lay statements, therefore, do not demonstrate entitlement to a TDIU. As such, the evidence of record demonstrates that the Veteran is not incapable of obtaining and maintaining gainful employment that is consistent with his work experience in management and as a personnel director. In light of the VA examination reports and December 2012 medical opinion, and the evidence of record, the Board finds that the evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation consistent with his work experience in management or as a personnel director solely due to his service-connected disabilities. The evidence shows that these disorders are limiting, but the evidence does not indicate that the Veteran is physically or mentally incapable of engaging in employment as a result of his residuals of cold injuries and low back disability. Because the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not helpful to the Veteran. ORDER Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs