Citation Nr: 1311035 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 05-33 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her parents ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from December 1987 to February 1999, with more than three years of prior active service. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of the Veteran's claim has been transferred to the RO in Waco, Texas. In March 2009, the Veteran and her parents testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. To the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the 2009 Board hearing. This case was previously before the Board in June 2009 and May 2010, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case is once again before the Board for appellate consideration of the issue on appeal. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). While this case was on remand, in a February 2012 rating decision, the Appeals Management Center (AMC) granted a temporary total rating based on the need for convalescence after knee surgery, effective March 2, 2011, with the prior schedular rating effective May 1, 2011. The issue of entitlement to an increased schedular rating for a service-connected left knee disability has been raised by the record (see the Veteran's March 2012 letter), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and is referred to the AOJ for appropriate action. FINDING OF FACT According to the probative medical and other evidence of record, it is just as likely as not that the Veteran's service-connected disabilities prevent her from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for the assignment of a TDIU evaluation on an extra-schedular basis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(b), 4.18 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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 service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service 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). If a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), she still may be entitled to a TDIU on an extra-schedular basis, provided she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b). 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). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Requiring a Veteran to prove that she is 100-percent, i.e., totally unemployable is different than requiring she prove that she cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Veteran's service connected disabilities are as follows: residuals of a hysterectomy, evaluated as 30 percent disabling; degenerative disc disease of the lumbar spine with lumbar strain, evaluated as 20 percent disabling; degenerative joint disease of the right knee, tinnitus, residual scarring and chronic left knee strain, each evaluated as 10 percent disabling; and calluses of the bilateral feet and left ear hearing loss, both evaluated as noncompensable. The Veteran's service-connected orthopedic disabilities (degenerative disc disease of the lumbar spine, degenerative joint disease of the right knee, and chronic left knee strain) may be considered to be "one disability" for purposes of meeting the percentage rating requirements for consideration of a TDIU rating, as they are all disabilities affecting a single body system. 38 C.F.R. § 4.16(a). In combination, these orthopedic disabilities are rated 40 percent disabling. However, her combined service-connected disability evaluation is 60 percent. See 38 C.F.R. § 4.25 (2012). As her combined service-connected disability rating is less than 70 percent, she does not satisfy the threshold minimum percentage requirements of 38 C.F.R. § 4.16(a) for the assignment of TDIU on a schedular basis. Consequently, the remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities for purposes of a possible extra-schedular TDIU evaluation. 38 C.F.R. § 4.16(b). Regulations require only 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). The Board itself cannot assign an extra-schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). In this case, the Board has already referred the case to the Director of the Compensation and Pension Service (C&P) to determine whether this Veteran's disability picture requires the assignment of an extra-schedular TDIU evaluation. See May 2010 Board remand. In April 2011, the Director of C&P determined that an extra-schedular TDIU evaluation is not warranted in this case, finding that the Veteran's disabilities do not render her unemployable "under any circumstances." See April 2011 Administrative Review. Therefore, the issue of an extra-schedular TDIU evaluation under 38 C.F.R. § 4.16(b) is no longer before the Board in the first instance, and the Board now has jurisdiction to adjudicate the issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extra-schedular TDIU evaluation is warranted. In this case, the evidence is mixed regarding whether the Veteran's service-connected disabilities alone render her unable to obtain or maintain gainful employment. On her initial TDIU application, the Veteran reported having completed high school and two years of college. See July 2003 VA Form 21-8940. She reported working full time at Charter Communications (Charter) as a Retention Specialist from January 2002 to April 2003, having missed three months of work due to disability. In August 2003, Charter terminated the Veteran's employment, noting that her benefits under the Family Medical Leave Act had expired and she continued to be unable to return to work. In a later TDIU application in February 2008, the Veteran reported additional employment, as a full time airline reservations agent from May 1999 to June 2000 (with six months lost time from work), and as a part time retail clerk from June 2007 to March 2008 (with two months lost from work). See February 2008 VA Form 21-8940. The Veteran's podiatrist submitted a brief, undated statement noting simply that the Veteran "is able to return to work." In January 2005, a Social Security Administration (SSA) judge determined that the Veteran has "severe" medical impairments consisting of degenerative disc disease of the lumbar spine and degenerative joint disease of the left knee. See January 2005 SSA Decision. The SSA judge also found that the Veteran is unable to perform any past relevant work and, based on her education background, has no transferable skills. At the March 2009 Board hearing, the Veteran testified that she was unable to maintain employment specifically due to her service-connected back and bilateral knee disabilities. She testified that prolonged sitting and standing both aggravated her disabilities and was previously placed on administrative leave because she had difficulties sitting throughout the day. She also testified that, due to her knee disabilities, she was prone to falling and that her knees give out "constantly." She testified that she left her retail job after experiencing a fall. She said that she had applied for several positions but could never pass the physical examinations. Her mother testified that she had seen the Veteran fall frequently. Turning to the medical evidence of record, the report of an October 2008 VA examination addressing the Veteran's bilateral knee disability indicates the VA examiner concluded that the Veteran's knees would not prevent her from maintaining gainful employment as long as she were allowed to move around if she were required to sit or stand for any long length of time. The examiner further stated that a physically demanding job involving kneeling or squatting would be out of the question. In a separate October 2008 VA examination addressing the Veteran's low back disability, the same VA examiner stated that the Veteran's low back disability would prevent her from being able to do any type of heavy manual labor, including lifting and bending. However, sitting for long periods of time, without moving around or stretching, would also be "contraindicated." In an addendum opinion dated November 2009, the VA examiner determined that the Veteran's back and bilateral knee disabilities would not prevent her from maintaining gainful employment in a sedentary position with the stipulation that she be allowed to arise and stretch every 45 minutes to an hour. In considering the evidence of record as it pertains to the Veteran's employability, the Board is mindful that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the November 2009 VA medical opinion addendum suggests that the Veteran can work with limitations, the Board notes it can also be read as determining that, unless the Veteran finds a position that would allow her to rise and stretch every 45 minutes to an hour, then her service-connected back and knee disabilities do in fact prevent her from maintaining substantially gainful employment. Further, while the January 2005 SSA decision is based on different laws and regulations than those governing veterans' benefits and is therefore not binding on the Board, it does provide probative evidence that the Veteran's service-connected disabilities greatly impair her ability to return to her previous line of employment, specifically a customer service position that would require her to maintain an ability to sit for long periods to answer and engage in telephone calls. As to the negative opinion provided by the Director of C&P in April 2011, the Board does not find this determination to be persuasive. Although the Director admitted that the evidence of record demonstrated that the Veteran would not be able to perform heavy work, the Director still found that, under the right circumstances, employment in a sedentary position is a viable option. However, this opinion does not appear to take into account the Veteran's prior work history and education level in determining her ability to find such a position. As the United States Court of Appeals for Veterans Claims (Court) stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). The Board emphasizes that entitlement to an extra-schedular TDIU evaluation under 4.16(b) requires that 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. See 38 C.F.R. § 4.16(b). Overall, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities in combination are of a nature and severity as to preclude the work for which she is qualified by reason of past education and work experience. The record shows that the Veteran is currently unemployed. She has provided credible statements and testimony that both her knee disabilities and her back disability in combination have prevented her from working, despite repeated attempts to do so. Doctors have confirmed that the Veteran's low back disability and bilateral knee disabilities are the primary reason she cannot stand or even sit in the same position for prolonged periods of time, so there necessarily would have to be accommodation for this by any potential employer, which is not a reasonable expectation. Thus, with application of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3), the Board finds that the criteria for a TDIU are met on an extra-schedular basis under 38 C.F.R. § 4.16(b). ORDER A TDIU evaluation is granted on an extra-schedular basis, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ C. L. WASSER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs