Citation Nr: 1310029 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-07 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 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 M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1998 to October 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2011, the Board remanded the case for additional development, to include affording the Veteran a VA examination and obtaining records. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a September 2012 rating decision, the Appeals Management Center (AMC) granted a separate compensable rating for right side lumbosacral radiculopathy, evaluated as 10 percent disabling effective from August 10, 2012. The Board notes that the Veteran specifically excluded the issue of an increased rating for his lumbosacral spine disability when he filed a VA Form 9 in March 2008. As such, that issue is not before the Board. See 38 C.F.R. §§ 20.200, 20.302 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran is service-connected for residuals of a fracture at L2 with chronic lower back pain and spondylodiscitis at L2-3, rated as 30 percent disabling; and, right side lumbar radiculopathy, rated as 10 percent disabling. His combined evaluation is 40 percent. 3. The Veteran does not meet the schedular criteria for TDIU even when the common etiology of the Veteran's disorders are taken into consideration. 4. The Veteran's service-connected disabilities do not preclude him from performing substantially gainful employment consistent with his educational and vocational experiences. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO did provide the appellant with notice in December 2006, prior to the initial decision on the claim in February 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for entitlement to TDIU and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. As previously noted, the Board remanded the case for further development in August 2011. The Appeals Management Center (AMC) obtained the SSA records and afforded the Veteran a VA examination in August 2012 in compliance with remand directives. In attempt to further comply with the remand, the AMC also requested in an August 2011 letter that the Veteran provide relevant records pertaining to his worker's compensation claim and unemployment determination from the North Carolina Employment Security Commission. The letter further requested that the Veteran complete a VA Form 21-4142, Authorization for Release of Information, to authorize the release of records. In addition, the AMC requested that the Veteran provide his current education, training, and employment status, to include how many years of college and training he completed, as well as any professional and vocational degrees or certificated obtained. However, the Veteran did not respond to these requests. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, the Veteran was afforded VA examinations in January 2007, July 2009, and August 2012 in connection with his claim for TDIU. 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 Board finds the most recent August 2012 VA examination obtained in this case is adequate, as it is predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully addresses the rating criteria that are relevant to rating the disability in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above 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. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; 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 the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is service-connected for residuals of a fracture at L2 with chronic lower back pain and spondylodiscitis at L2-3, rated as 30 percent disabling; and, right side lumbar radiculopathy, rated as 10 percent disabling. His combined evaluation is 40 percent. Even considering that his disabilities have a common etiology, the Veteran does not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Nevertheless, as previously stated, veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards may submit claims to the Director of the Compensation and Pension Service for extraschedular consideration in cases of veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Upon review of the claims file, the Board finds that the evidentiary record does not support a conclusion that there are any unusual or exceptional circumstances present in the Veteran's case as to have warranted its referral to the VA Director of the Compensation and Pension Service. In this regard, there has been no indication that VA's schedule for rating disabilities is insufficient or inadequate to assign ratings for the Veteran's service-connected disabilities. A review of the record shows that SSA determined in January 2010 that the Veteran was disabled beginning on February 27, 2007, and ending on August 2, 2008, due to chronic back pain. The Board notes that the dates during which SSA determined that the Veteran was disabled correspond to the date of the Veteran's work-related back injury and subsequent rehabilitation. The decision referenced private medical records which indicated that the Veteran could return to his prior employment or perform sedentary work. Moreover, the evidence of record indicates that the Veteran is currently employed part-time. The Veteran submitted a claim for TDIU in October 2006. However, in the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was currently employed for 40 hours per week. In a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, received January 2007, the Veteran's employer also indicated that he was currently employed as a Health Care Technician II for 40 hours a week and had been in that position since July 2003. The employer further stated the Veteran had no noted disabilities. The January 2007 VA examiner reviewed the Veteran's claims file and performed a physical examination after which he diagnosed him with spondylodiskitis and a history of an L2 fracture. The examiner indicated there would be significant effects on the Veteran's usual occupation resulting in increased absenteeism at work. However, the Veteran himself indicated that he was currently employed full-time as a healthcare technician, albeit with a 6 week period of time lost during the last 12 months. In a May 2007 statement, the Veteran alleged that he has been unable to work since February 27, 2007. In a May 2007 statement, a private physician, Dr. C.M. (initials used to protect the Veteran's privacy), indicated that the Veteran presented for a workman's compensation injury that occurred on February 27, 2007, "when he was dealing with an aggressive client" and a doorknob struck him in the middle of his lower back. Private hospitalization records indicate the Veteran had low back surgery in August 2007 following a work-related back injury. In a March 2007 "Return to Work Form," Dr. M.B. indicated that the Veteran could resume work immediately if restricted to sedentary work. In November 2007, Dr. C.M. performed a physical examination and diagnosed the Veteran with status post lumbar fusion with symptomatic complaints. He indicated there was no evidence of objective dysfunction and that he would set the Veteran up for a work hardening program and preparation for return to work. In January 2008, Dr. C.M. indicated that the Veteran could return to work February 3, 2008, with restrictions. In February 2008, he noted that resolution of the Veteran's symptomatology was somewhat doubtful given that the Veteran was involved in two motor vehicle accidents and a work-related back injury. However, in June 2008, Dr. C.M. indicated that the Veteran applied for a job at a call center, and he stated that he had no problems with the Veteran going to work at a call center. In his March 2008 VA Form 9, the Veteran stated that he was injured at work and was told not to work by the doctors who treated that back injury. He also indicated that he received unemployment benefits through the Employment Security Commission since January 2008. A September 2008 North Carolina Employment Security Commission determination indicated that the Veteran's primary occupation was a healthcare technician. It was noted that he had been restricted from doing any lifting and no forward bending at the wrist due to a lower back injury. The determination stated that the restriction eliminated him from a majority of jobs for which he is qualified in the local labor market. It was concluded that he could not be deemed able to work. The July 2009 VA examiner reviewed the Veteran's claims file and performed a physical examination. The Veteran indicated that he was terminated from his job for reasons unrelated to his back condition and stated that he was currently enrolled in community college for training in computers. The examiner commented that the Veteran's current medical condition of the lumbar spine would impact his ability to perform in a physical job, more so than a sedentary job, due to the need for bending, stooping, lifting, prolonged standing or walking potentially required for a physical job. In an October 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was receiving educational training in computer systems technology that he was expected to complete in March 2010. He also reported that he tried to obtain employment in the healthcare industry and as both a sales representative and a customer service representative. The August 2012 VA examiner reviewed the Veteran's claims folder and performed a physical examination after which he indicated that the Veteran is able to obtain and maintain gainful employment. He noted the Veteran's report that he was employed part-time, 23 hours a week, assisting a neighbor. The examiner stated that the Veteran is able to walk, drive for 1 hour, stand, sit, and handle objects. He noted the Veteran would be unable to lift or carry, as would be required for more physical employment. However, he opined that the current back condition would have no effect on sedentary employment. He also noted the Veteran was working in a physically demanding position in a group home from 2000 to 2008 and was able to manage that position until the work-related back injury and motor vehicle accidents. Based on the foregoing, it does not appear that the Veteran is incapable of performing sedentary work or other forms of similar work. Indeed, the Veteran is currently working. As such, the evidence does not show the Veteran to be entirely unemployable due solely to his service-connected disabilities. The Board notes that the Veteran is currently employed part-time. However, as noted above, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. In this case, the record indicates the Veteran was employed full-time as a healthcare technician until a work-related back injury in February 2007. In January 2008, Dr. C.M. indicated that the Veteran could return to work the following month. In February 2008, Dr. C.M. noted the Veteran experienced two motor vehicle accidents, but stated that the Veteran could work in a call center. During a January 2009 VA examination, the Veteran also reported that he was terminated from his job for reasons unrelated to his back condition and stated that he was currently enrolled in community college for training in computers. In addition, the August 2012 VA examiner stated that the Veteran is able to obtain and maintain gainful employment, particularly in light of the fact that he is currently employed. The examiner also commented that the Veteran's back disability would have no effect on sedentary employment. Essentially, there is no indication that the Veteran is unemployable as a result of his service-connected disabilities alone. There is also no indication that any other agency, such as the Social Security Administration-which is not limited in its review of matters concerning unemployability to consideration of only service-connected disabilities--has determined that the Veteran is currently unemployable. Based on the foregoing, the Board concludes that while the Veteran undoubtedly has industrial impairment as a result of his service-connected disabilities, as evidenced by his combined 40 percent disability evaluation, the evidence does not show that the service-connected disorders alone preclude gainful employment. The Board would note that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1 (2012). Based on a review of the evidence of record, the Board is of the opinion that the disability evaluations assigned to the Veteran's disorders under the VA Schedule for Rating Disabilities accurately reflect the Veteran's overall impairment to his earning capacity due to his service-connected disabilities. Therefore, a total rating for compensation based on individual unemployability due to service-connected disability is not warranted. ORDER A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs