Citation Nr: 1314918 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 06-15 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1961 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 and February 2006 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. In May 2006, the Veteran testified before a Decision Review Officer in Phoenix, Arizona. A transcript of that hearing is of record. In September 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in March 2009, June 2010, and February 2012 and was remanded for further development. It has now returned to the Board for further appellate consideration. The issue of entitlement to a TDIU prior to June 24, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is service connected for arthritis of the cervical spine, diabetes mellitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, arthritis of the right ring finger, hypertension, chronic maxillary sinusitis, chronic nonspecific urethritis and prostatitis, and erectile dysfunction, for a combined evaluation of 70 percent, effective from June 24, 2010; and a combined evaluation of 80 percent effective from February 22, 2012. 2. The Veteran met the schedular rating criteria for a TDIU as of June 24, 2010. 3. The Veteran's most recent occupation was as a mail carrier for approximately twenty years. 4. The competent evidence of record demonstrates that Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on a schedular basis from June 24, 2010 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in July 2005, April 2006 and August 2012. The claim was subsequently readjudicated in a January 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records and correspondence, United States Postal Service records, and the statements of the Veteran, to include his testimony at a DRO and a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. Examinations were obtained in 2012. 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 that the examinations are adequate, as they include clinical examinations and interviews with the Veteran with regard to his symptoms. The reports of the examination contain findings necessary to evaluate the Veteran's employability. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria 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 a 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 service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability, as will disabilities of common etiology. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). 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 any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. 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. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(b). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the current claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service-connected for arthritis of the cervical spine, evaluated as 10 percent disabling prior to June 9, 2005, 20 percent disabling from June 9, 2005 to March 21, 2012, and 30 percent disabling from March 21, 2012; diabetes mellitus, evaluated as 20 percent disabling from October 2, 2001; peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling from February 24, 2005 and as 20 percent disabling from June 24, 2010; peripheral neuropathy of the left lower extremity evaluated as 10 percent disabling from February 24, 2005 and as 20 percent disabling from June 24, 2010; peripheral neuropathy of the left upper extremity evaluated as 10 percent disabling from February 24, 2005 and as 20 percent disabling from February 22, 2102; peripheral neuropathy of the right upper extremity evaluated as 10 percent disabling from February 24, 2005; arthritis of the right ring finger evaluated as noncompensable; hypertension with left ventricular hypertrophy evaluated as 10 percent disabling from February 24, 2005; chronic maxillary sinusitis evaluated as noncompensable; chronic nonspecific urethritis and prostatitis evaluated as noncompensable; and erectile dysfunction evaluated as noncompensable. The Veteran also has the following disabilities for which he is not service connected: low back disability, chronic disease of the liver, chronic skin disability, and depressive disorder. The Veteran attained a 60 percent total evaluation effective from February 24, 2005; however, he did not have a single disability ratable at 60 percent. The Board has considered that diabetes and the four peripheral neuropathy disabilities all stem from the same common etiology (diabetes mellitus) and that the extremities include bilateral factors. 38 C.F.R. § 4.16(a). Nonetheless, their combined total evaluation is only 50 percent. Effective from June 24, 2010, the Veteran's lower extremities of peripheral neuropathy were increased in evaluation to 20 percent each, and all his disabilities combined for a total rating of 70 percent. Thus, the Veteran did not meet the schedular requirements for TDIU until June 24, 2010. The Veteran is eligible for TDIU from June 24, 2010 on a schedular basis provided that the competent credible evidence reflects that he has a service-connected disability or disabilities which prevent him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). A June 2010 VA examination report reflects that the Veteran retired from the post office due to his service-connected diabetic neuropathy and nonservice-connected chronic low back pain. The examiner stated that the Veteran was unable to walk for more than a few hundred yards, and stand for longer than thirty minutes. He can sit for up to an hour. He is unable to bend, lift or carry weight greater than 10 pounds. The examiner opined that the Veteran would only be capable of part time sedentary employment. Unfortunately, the examiner did not state if the Veteran's limitation to part-time sedentary employment was due to his service-connected disabilities alone. It was noted that the Veteran was claiming TDIU, "but not because of his neck but due to constant lower back pain, lower extremity pain and limitation of movement in the back and legs secondary to neuropathy." The record also reflects that the Veteran complained of numbness and pins and needles involving the hands starting in 2004. A February 2012 VA examination report reflects that the Veteran's non-allergic rhinitis does not affect his ability to work. Another February 2012 VA examination report reflects that the Veteran "can not walk for more than a few yards, or stand for longer than 15 minutes. He is able to sit, operate a computer keyboard, write legibly and answer the phone." The Veteran's symptoms of peripheral neuropathy were noted to be mild in the bilateral upper extremities for constant and intermittent pain, paresthesias and/or dysesthesias, and numbness. With regard to the bilateral lower extremities, they were moderate with regard to constant and intermittent pain, mild with regard to paresthesias and/or dysesthesias, and moderate with regard to numbness. He had decreased reflexes in the biceps and triceps, brachioradialis, and knees. He had decreased hand/fingers light touch testing results, absent ankle/lower leg and foot/toes light touch/monofilament testing results. He had decreased vibration in all four extremities. He had decreased cold sensation in all four extremities. He had mild incomplete paralysis of the right radial nerve, and moderate incomplete paralysis of the left radial nerve. He had mild incomplete paralysis of the median nerve bilaterally. He had mild incomplete paralysis of right ulnar nerve, and moderate incomplete paralysis of the left ulnar nerve. He had moderate incomplete paralysis of the sciatic nerve and femoral nerves bilaterally. A March 2012 VA examination report reflects the following: [the Veteran] was unable to walk more than a block or stand for longer than 20-30 minutes due to peripheral neuropathy. He cannot sit for more than 30 minutes, cannot drive safely as he cannot rotate his head more than 5-10 degrees. He cannot maintain focus on a computer screen or TV screen for more than 10 minutes due to the DJD in the cervical spine. He would have severe difficulty if he attempted to perform physical labor due to the cervical DJD, ring finger DJD, and peripheral neuropathy. He would be able to perform sedentery[sic] work with frequent breaks every 30 minutes. The Board has considered the education and work history of the Veteran. The record reflects that he has approximately seven years experience as a medic, 14 years experience in telecommunications, and 20 years experience working for the U.S. postal service, with duties as a mail carrier. The Board also notes that he ceased working in January 2006, and has education and training as a medical assistant. The Board has also considered that the Veteran lives in Arizona, is precluded from a job which requires work outside in temperatures of 90 degrees or above (See July 2004 handwritten note from Dr. J.A.), cannot walk more than a block at a time, cannot stand for longer than 20-30 minutes, cannot sit for more than 30 minutes, cannot drive safely, and cannot maintain focus on a computer screen or TV screen for more than 10 minutes. The Board notes that he would be able to perform sedentary work with frequent breaks every 30 minutes. The Board has considered the clinical evidence of record, as well as the Veteran's lay statements. A lay statement is competent to establish the presence of observable symptomatology. Thus, the Veteran is competent to describe the observable symptomatology that is caused by his service-connected disabilities and to attest to the severity of such, to include feelings of exhaustion, tingling, numbness, and pain. He is also competent to describe his difficulty in obtaining employment. The medical evidence of record also supports the Veteran's contention that he is unable to maintain substantial gainful employment, consistent with his experience and education, on account of his service connected disabilities. In this regard, the Veteran's occupational history involved extensive physical labor (i.e. considerable walking). The Veteran's educational experience does include training as a medical assistant; however, his difficulties with walking, standing, moving his neck, and sitting would reasonably have an adverse affect on obtaining such employment. Based on the Veteran's numerous limitations and his job experience, most recently as a mail carrier for two decades, and in giving the benefit of the doubt to the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities on a schedular basis from June 24, 2010. ORDER Entitlement to a TDIU on a schedular basis from June 24, 2010 is granted. REMAND As noted above, the Veteran first met the requirements for TDIU on a schedular basis from June 24, 2010. Even when a Veteran does not meet the scheduler criteria for a TDIU, it may still be available on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular disability rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). A July 2004 handwritten note from Dr. J.A. reflects that the Veteran has had "difficult in the past [with] heat exhaustion. It is my opinion that he has to stay out of the heat when temperatures are greater [than] 90 - 100 degrees." The Board notes that the evidence of record reflects that the Veteran has been employed, and living, in Arizona. A June 2005 VA examination report reflects that the Veteran works as a mail carrier and that he is limited in his occupation due to heat exhaustion. It was noted that the Veteran reported that he had no difficulty with his occupation because of his diabetes mellitus. In a June 2005 statement, the Veteran asserted that he had difficulty performing his job due to peripheral neuropathy secondary to his diabetes mellitus. He reported that he had had told his employer on numerous occasions that he was unable to work due to his diabetes being out of control. The Board notes that this differs substantially from the VA examination report, which is dated the same day as the Veteran's statement. A VA Form 21-8940 dated in July 2005 reflects the Veteran's statement that he last worked full time in 2004, but he was earning $1,312.21 a month and had earned $46,689 in the last 12 months. July 2005 correspondence from DR.P.P. reflects the following: [the Veteran] is a 62 year old male with multiple medical problems. He has osteoarthritis of the cervical and lumbar spine with pain and restricted motion. This illness restricts [the Veteran] from lifting greater than 20 pounds and from climbing, bending, stooping, or crawling. Also, [the Veteran] has Diabetes Mellitus, hypertension, and hyperlipidemia. He is medically advised to follow a strict diet and avoid temperature extremes. An August 2005 OPM Standard Form 3112B reflects the following: Since 7/11/2002 employee during months of April thru September has been unable to perform street duties of his mail routes when outside temperature reaches 90 degrees . His letter carrier position involving 60 percent of his workday is outside. An August 2005 letter from the United States Postal Service reflects that the Veteran's required to be reassigned as a processing clerk at the [A./G.] Post Office was denied due to his unacceptable attendance record. A November 2005 private NCV/EMG report from Dr. K.P. reflects that the Veteran had findings which suggest bilateral ulnar neuropathy at the elbows. A January 2006 VA examination report reflects that the Veteran reported that he retired from the post office because of difficulty with his nonservice-connected back disability. It was noted that his retirement did not involve his service-connected neck disability. It was noted that the Veteran reported a constant dull ache in the cervical region, for which he was not currently taking any medication. He denied the use cane, crutches, or walker. It was further noted that he was able to walk less than one block "but only because of his back. Has nothing to do with his neck." It was also noted that "[i]n all sensory modalities of the lower extremities and not the upper extremities revealed decreased vibratory two -point discrimination light touch vibratory and proprioception, secondary to back problem, unrelated to the cervical spine." A February 2006 VA record reflects that upon diagnostic testing, the Veteran had bilaterally tibial motor nerves within the normal range, but bilaterally sural sensory nerves latency which was prolonged abnormally. The Veteran testified at the May 2006 DRO hearing that when he was a letter carrier, the post office accommodated his cervical spine disability by providing a platform for him; however, he stated that his cervical spine was one of the reasons he left the postal service. (See DRO hearing transcript, page 3.) An August 2006 VA examination report reflects that the Veteran reported that he worked at the post office until January 2006 when he began having trouble with his legs which consisted of aching and which caused him to retire from the post office. He was diagnosed with bilateral lower extremity sensory peripheral neuropathy. An August 2006 VA examination report reflects that the Veteran reported that he retired from the post office due to the effect of the heat and his diabetes mellitus. The Veteran testified at the September 2008 Travel Board hearing that he gets tingling and cramping in the legs and when he tries to walk, he aches and hurts. He estimated that he can walk a "little over a block" before having to stop. The Veteran testified that he retired from the post office due to his diabetes. He reported that he could not do any excessive walking or be outside in excess of 90 degrees.(See Board hearing transcript page 21.) Based on the foregoing, the Board finds that the Veteran's claim of entitlement to TDIU for the time period prior to June 24, 2010 should be referred to the Director of the Compensation and Pension Service for consideration of a TDIU on an extra-schedular basis under § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the issue of entitlement to TDIU for the period prior to June 24, 2010 to the Director of the Compensation and Pension Service for extraschedular consideration 2. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs