Citation Nr: 1308596 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-28 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disability. (The issues of entitlement to higher initial ratings for lumbar strain with degenerative changes, status post-lumbar laminectomy and, entitlement to an effective date for the award of service connection for lumbar strain with degenerative changes is the subject of a separate Board of Veterans' Appeals (Board) decision) REPRESENTATION Appellant represented by: James Marr, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1964 to February 1967. This appeal to the Board arose from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the benefit sought on appeal. The Veteran appeared at a Board hearing in August 2012 via video conference before the undersigned Veterans Law Judge (VLJ), with the Veteran sitting at the local RO and the undersigned sitting at the Board's Central Office in Washington, DC. The undersigned heard testimony solely on the issue of entitlement to a TDIU. A transcript of the hearing testimony is associated with the claims file and has been reviewed. The Veteran testified at a Board hearing in January 2007 before a different VLJ assigned to the Board on the issues of an earlier effective date for service connection for a lumbar spine disability and higher initial ratings for that same disability. In light of the fact that a TDIU is deemed part and parcel of an increased rating claim where a claimant asserts unemployability, the decision below is a panel decision on which the VLJ who presided at the January 2007 hearing is included. Chairman's Memorandum 01-11-10 (May 12, 2011), paragraph 4; see also 38 U.S.C.A. §§ 7102(a) and 7107(c) (West 2002); 38 C.F.R. §§ 19.3 and 20.707 (2012); Arneson v. Shinseki, 24 Vet. App. 379 (2011). A December 2012 Board letter informed the Veteran he was entitled to a hearing before the third judge who would participate in deciding his appeal. See Arneson, supra. In his response, also dated in December 2012, the Veteran informed the Board he did not desire a hearing before a third VLJ. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. FINDINGS OF FACT 1. Service connection is in effect solely for a lumbosacral strain rated at 20 percent disabling. 2. The preponderance of the evidence shows the Veteran's service-connected disability does not preclude him from securing or following a substantially gainful occupation. 3. The preponderance of the evidence shows no plausible basis for further referral for consideration of a TDIU on an extraschedular basis. CONCLUSION OF LAW The criteria for a TDIU or for further referral for consideration of TDIU on an extraschedular basis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 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, have been met. There is no issue as to providing an appropriate application form or completeness of the application. Prior to issuance of the decision appealed, VA notified the Veteran in August 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and notice of how disability ratings and effective dates are assigned. The Board finds the letter was fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The combined efforts of the RO and the Veteran have resulted in all relevant identified records being added to the record, including the records related to the Veteran's award of benefits by the Social Security Administration. The Board notes that, in fact, subsequent requests for records have resulted in the addition of records duplicative of those already in the claims file. Neither the Veteran nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See id. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations For VA purposes, 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. 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 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 disability to bring the combined rating to 70 percent or more. Marginal employment (generally, where the disabled person's earned annual income does not exceed the amount established by the Bureau of the Census as the poverty threshold for one person) shall not be considered substantially gainful employment. However, if the total rating is based upon a disability or combination of disabilities for which the Rating Schedule 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. §§ 3.340, 3.341, 4.16(a). Analysis Per the October 2003 rating decision, the Veteran's current service-connected lumbar strain is evaluated at 20 percent disabling. The Veteran has testified that he has been unable to work at all since a June 2007 work-related low back injury. He believed that, were it not for the residual impact of his service-connected injury, the June 2007 injury would not have occurred. A separate Board decision by one of the panel judges determined the Veteran's neurological symptomatology, to include the post-L3-L4 laminectomy, are causally related to a June 2007 work-related injury rather than his service-connected lumbosacral strain. The lumbar strain is the sole disability for which the Veteran is service connected. Hence, his total combined disability rating is 20 percent. The Veteran's total rating of 20 percent does not meet the criteria for allowance of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Nonetheless, 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. Id. Hence, the question remains whether the Veteran's service-connected disabilities, regardless of age, prevents him from securing and following substantially gainful employment per 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). As is the case with increased rating claims, see 38 C.F.R. § 3.321(b)(1), the Court Of Appeals For Veterans Claims (Court) has held that, where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board may, however, refer the claim to the Director for extraschedular consideration. The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation. Bowling, 15 Vet. App. at 9-10. In addition to asserting his currently diagnosed low back disorder, status post-operative, is causally connected to his active service, the Veteran also asserts he is entitled to a TDIU under VA regulations because he was awarded disability benefits by the Social Security Administration. A Social Security Administration administrative law judge (ALJ) rendered a decision fully favorable to the Veteran in September 2008. The Board rejects the Veteran's assertion. As noted earlier, the separate Board decision referenced on the cover sheet determined the Veteran's sole service-connected disability is a lumbar strain, and that the associated neurological symptomatology, pre- and postoperative, is not causally related to the lumbar strain. As for the Veteran's alternative assertion, the Board acknowledges the findings of the ALJ. Nonetheless, there are significant differences in the definition of disability under the Social Security Administration and VA disability systems. As a result, Social Security Administration disability determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). On the other hand, there are also significant similarities between the two systems. Consequently, the Board must provide the basis for disagreeing with or not accepting a finding of disability by a Social Security Administration ALJ. Id. The salient reason for rejecting the ALJ's determination is that, although he decided solely on the basis of the Veteran's low back disability, to the exclusion of his other nonservice-connected disabilities, the ALJ found the Veteran was deemed permanently disabled for further employment under criteria that are not for application under the VA system. Specifically, the ALJ considered the Veteran's age, whether he had transferrable skills, and whether the U.S. economy was in fact likely to have jobs available for the work the Veteran is deemed able to perform. See ALJ Findings 7, 9, and 10, Pages 4-5 (September 2008) (Vol. 1 of claims file). Under the VA criteria, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant an award of TDIU. 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. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record shows the Veteran to have a high school education. He formerly worked as a part-time pastor as well as a truck driver. His last full-time employer released him from his job as a truck driver after the June 2007 on-the-job injury to his low back. (Vol. 3). The September 2008 VA Employer Information Form returned by the last church the Veteran pastured (Vol. 3) reflects the Veteran last served the church in February 2005. The form reflects no concessions for age or disability were made during the Veteran's employment. A July 2011 VA general examination report reflects the examiner reviewed the claims file and examined the Veteran. Based on the clinical findings on objective examination and the record, the examiner opined the impact of the Veteran's service-connected lumbar strain was decreased mobility, pain, and problems with lifting and carrying. The impact on activities of daily living was the Veteran needed some help bathing. The examiner opined there was less than a 50-percent probability the Veteran's service-connected lumbar strain rendered him unable to secure and maintain gainful employment. A spine examination that month indicated that the impairment from the service-connected disability was moderate. The ALJ in 2008 specifically found as fact that the Veteran still had the residual capacity to perform sedentary work. See ALJ Finding 5, Page 3. Thus, there is no essential disagreement between the Social Security Administration and VA. It was not until the ALJ considered additional factors required by regulations of the Social Security Administration that the Veteran was deemed disabled. As noted earlier, those criteria are not part of the VA disability criteria. See 38 C.F.R. §§ 3.340, 4.15, and 4.16 In light of the above, the Board is constrained to find the preponderance of the evidence shows the Veteran's service-connected lumbar strain does not render him unable to secure and follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board finds further that the evidence shows no plausible basis for referring the Veteran's claim for consideration by the Director for unemployability on an extraschedular basis. 38 C.F.R. § 4.16(b). Thus, the Board is constrained to deny the claim. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to a TDIU due to service-connected disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals _____________________________ _________________________________ MICHAEL A. PAPPAS JAMES L. MARCH Both, Veterans Law Judges, Board of Veterans' Appeals Department of Veterans Affairs