Citation Nr: 1314015 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 03-18 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 4, 2009. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to February 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded in February 2012 for further development. FINDINGS OF FACT 1. Prior to March 4, 2009, the Veteran's combined schedular service-connected disability rating was 50 percent or less. 2. Prior to March 12, 2007, the Veteran was not precluded from all forms of substantially gainful employment due to his service-connected disabilities. 3. From March 12, 2007, the Veteran was precluded from all forms of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to March 12, 2007, the criteria for a TDIU are not met on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). 2. From March 12, 2007, the criteria for a TDIU are met on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran notice by letters dated in December 2001, March 2004, and October 2010. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the required notice was not provided prior to the initial adjudication, after adequate notice was provided, there was an opportunity to submit additional evidence, followed by readjudication, curing the notice timing error. Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained VA and private medical records; assisted the Veteran in obtaining evidence; examined the Veteran for service-connected disabilities in March 2001, October 2004, March 2009, and October 2010; and afforded the Veteran the opportunity to give testimony before the Board. VA specifically examined the Veteran for TDIU purposes in March 2009 and October 2010. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's February 2012 remand by submitting the Veteran's claim to the Director of VA's Compensation and Pension Service for extraschedular consideration of a TDIU prior to March 4, 2009, issuing the Veteran a supplemental statement of the case, and returning the case to the Board. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App.518, 519 (1996), citing Gilbert. The Veteran contends, in essence, that he was unable to secure and maintain substantially gainful employment due to service-connected disabilities prior to March 4, 2009, and that therefore, a TDIU is warranted prior to that time. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 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). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to March 4, 2009, the Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: lumbosacral strain, rated 10 percent prior to January 9, 2001, and 20 percent from then; left hip replacement, rated 10 percent prior to January 9, 2001, 20 percent from January 9, 2001, 100 percent from March 26, 2007, and 30 percent from May 1, 2008; and right hip osteoarthritis, rated 10 percent from October 25, 2004. The combined rating was 20 percent prior to January 9, 2001, 40 percent from January 2001, 50 percent from October 25, 2004, 100 percent from March 26, 2007, and 50 percent from May 1, 2008. The Veteran's combined evaluation is no more than 50 percent prior to March 4, 2009. Since he does not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met. However, a TDIU evaluation can still be awarded prior to March 4, 2009 if it is established by the evidence of record that service-connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment prior to March 4, 2009. If there is evidence of this, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The case was forwarded to the Director of VA's Compensation and Pension Service, and in January 2013, such Director concluded that a TDIU prior to March 4, 2009 on an extraschedular basis was not warranted. Accordingly, the Board may now address this particular issue. The Veteran had alleged that he could not work as early as April 2001. In June 2003, he indicated that he could no longer engage in his trade shoeing horses, and could no longer ride horseback to look after his small cattle operation. However, subsequent records show that he continued to work thereafter. Then, in a statement received on March 12, 2007, he indicated that his back pain was so bad that he could no longer work at his trade of ranching and horseshoeing. His October 2010 VA Form 21-8940 indicates that his disabilities affected full time employment in June 2007, and that he became too disabled to work in 2001. He reported that he had worked shoeing horses from 2001 to 2002, and that he had worked 70 hours per week in cattle ranching from 2002 to 2007, earning up to $2900 per month. He remarked that he had too much pain in his back, knees, and hips, no longer rode horseback, and no longer shoed horses. He reported a back fusion and a hip replacement. He reported 12 years of formal education as well as training in horseshoeing and ranching. A March 2001 VA examination report indicates that the Veteran should limit heavy lifting and carrying, and should limit activities that require frequent stooping, bending, and crouching, due to his lumbar spine disability. Privately in June 2005, the Veteran had a microlaminectomy and foraminotomy of L3-L4 and L4-L5. At the time of an August 2005 special medical report, the Veteran had been working as a rancher. The physician indicated that the Veteran's back had affected his ability to be gainfully employed. In October 2005, Dr. Jones reported that the Veteran probably had an L4 radiculopathy that had not been dealt with, and that he was obviously disabled and had signs of complete disability in all phases of life. In February 2006, it was reported that a January 2006 L5-S1 foraminotomy had resolved the Veteran's severe pain and that he now had low grade pain in his right low back. Examination revealed good strength and normal sensation. A June 2006 private medical record indicates that the Veteran had had a right L4-5 foraminotomy in October 2005, followed by a foraminotomy at the L5-S1 level in January 2006. He could stand for about 5 minutes and walked 30 or 40 yards before a throbbing muscle crampy type pain occurred. He had a spinal cord stimulator operation in July 2006, and in September 2006, he reported that he was doing extremely well, with 60 to 70 percent relief of pain in his hip and leg with the stimulator. On private evaluation in October 2006, the Veteran indicated that he was able to ride, shoes horses, etc. He rose with ease and walked without assistive devices and with a slight limp. Sciatic stretch test was negative. On private evaluation on March 13, 2007, for left hip pain, the Veteran rose with ease, walked without assistive devices, and had a slight limp. He reported that the pain was severe when walking and prevented any activity. He reported that he walked only with crutches, for less than 10 minutes, that he used a cane most of the time, and that he needed more than a banister to walk stairs. On private evaluation in April 2008, it was reported that the Veteran walked minimally by choice, limited by low back pain, and that he was riding horses and using nothing to walk. He had returned to work but was now retired post shoulder surgery in January 2008. He could not return to full activity due to low back pain and shoulder problems. He could walk only with a cane, for less than 30 minutes. The importance of walking was explained to him. On VA examination in March 2009, the Veteran reported that he had retired in 2007 due to medical problems. He was unable to stand for more than a few minutes or to walk more than a few yards. He used 2 canes or a walker always with walking. The examiner indicated that degenerative joint disease of the Veteran's left hip caused decreased mobility. He indicated that the Veteran's radicular pain had improved since the last spinal fusion in January 2009, but that he continued to have incapacitating low back pain, and reduced range of motion. He agreed with Dr. Jones that the Veteran is unable to work due to his back and hip conditions. He was then unable to stand for over 10 minutes and could not lift his right arm properly. The examiner felt that these problems had prevented the Veteran from maintaining gainful employment since "2001". He had been unable to work the entire time since "2001" and unemployment was more likely than not a result of his service connected injury. On VA examination in October 2010, an examiner concluded that the Veteran's lumbosacral spine disability severely affected his daily life activities and certainly rendered him unemployable. In light of 38 C.F.R. § 4.16(b) and Bowling v. Principi, 15 Vet. App. 1 (2001), the Board remanded the case to the RO in February 2012 to have the Director of VA's Compensation and Pension Service consider granting the claim on an extraschedular basis, as the Board found evidence that the Veteran may have in fact been unable to engage in gainful employment due to service-connected disabilities prior to March 4, 2009. In January 2013, the Director found that an extraschedular unemployability rating was not warranted prior to March 4, 2009 since there was no evidence of unemployability prior to March 4, 2009. The information reported by the Veteran regarding employment and the dates thereof are somewhat inconsistent and confusing. However, after reviewing the totality of the evidence from a longitudinal perspective, the Board finds that with reasonable doubt resolved in the Veteran's favor, a TDIU is warranted on an extraschedular basis from March 12, 2007, the date the Veteran appears to have last worked full time. The record indicates that the Veteran has only 12 years of education and that his only work experience and training has been in ranching and shoeing horses. It appears that since March 12, 2007, substantially gainful employment was at least as likely as not precluded for him, due to his service-connected disabilities. However, it does not appear that service-connected disabilities precluded substantially gainful employment prior to March 12, 2007, since he worked full time prior to then. A TDIU is not warranted during the time when he was convalescing from left hip surgery, as other service-connected disabilities did not cause unemployability during that time period. The examiner in March 2009 had indicated that the Veteran had been unemployable since 2001, and there had been other indications of possible unemployability over the years, including Dr. Jones' October 2005 report. However, the fact remains that the Veteran worked full time in substantially gainful employment for years through early 2007. This precludes a TDIU prior to then. While the Director of Compensation and Pension felt in January 2013 that there was no evidence of unemployability prior to March 4, 2009, the March 2009 VA examination report is to the contrary, and so the Board finds the Director's opinion to be unpersuasive. The Board recognizes that the combined service-connected disability rating was only 50 percent from March 12, 2007 to March 4, 2009. However, it is stressed that by regulation provision is made for a finding of unemployability in certain cases even if the schedular criteria are not met. After weighing the evidence of record, the Board finds that it is at least as likely as not that the Veteran's service-connected disabilities precluded him from substantially gainful employment from March 12, 2007. The Veteran has work experience only in ranching and shoeing horses, and he only had 12 years of education, many years ago. Accordingly, it appears that he has been as likely as not precluded from all forms of substantially gainful employment (consistent with his education and work experience) due to service-connected disabilities from March 12, 2007. Entitlement to TDIU is therefore warranted from March 12, 2007. The April 2008 private evaluation report did not clearly indicate that the Veteran had returned to substantially gainful employment after March 12, 2007. Reasonable doubt is resolved in the Veteran's favor. ORDER Entitlement to a TDIU prior to March 12, 2007 is not warranted. To this extent, the appeal is denied. Entitlement to a TDIU from March 12, 2007 is warranted, subject to the controlling regulations applicable to the payment of monetary benefits. To this extent, the appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs