Citation Nr: 1314922 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 06-19 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, in pertinent part, denied a rating in excess of 10 percent for the Veteran's service-connected low back disability. In a June 2011 rating decision, the Appeals Management Center (AMC) recharacterized the Veteran's service-connected disability as "lumbar degenerative disc disease with chronic strain" (herein, low back disability). The AMC also granted a 40 percent rating for the low back disability effective March 31, 2005. In a decision in November 2011 the Board denied a rating higher than 40 percent for the low back disability. That issue is no longer in appellate status. In November 2011 the Board remanded the issue for a separate rating for lumbar radiculopathy. In November 2012 the RO granted service connection for radiculopathy of the lower extremities and assigned a 10 percent rating for each extremity. The Veteran has not filed a notice of disagreement with this determination and the issue of separate ratings for radiculopathy is no longer in appellate status. Lastly, in the November 2011 remand, the Board took jurisdiction over the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), where the Court held that a claim for a TDIU is part and parcel of an increased rating claim, and remanded the issue for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in May 2012 the Veteran submitted a statement indicating that he wanted his benefits to be effective the date of separation from service, however a report of contact in January 2013 shows that the Veteran clarified that he was not raising an additional claim. A review of the Virtual VA paperless claims processing system include VA medical records from 2002 to 2012, which mostly are copies of the evidence in the claims folder. Other documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The Veteran's service-connected disabilities have not rendered him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.16(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a post-adjudication VCAA notice by letter, dated in May 2012. The Veteran was notified of the evidence needed to substantiate the claim for a TDIU as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice, the claim for a TDIU was readjudicated as evidenced by the supplemental statement of the case, dated in November 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.) Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Post-service treatment records, records from the Social Security Administration (SSA), and lay statements have been associated with the file. Additionally, the Veteran was afforded VA examinations in September 2012 as well as an examination in October 2012. The examiners adequately addressed whether the Veteran's service-connected disabilities precluded him from substantially gainful employment. The VA examiner, P.J.M, in September 2012 addressed whether the service-connected tinnitus affected the Veteran's employability, however this examiner did not review the claims folder. Nevertheless, her opinion was based on the opinion of another VA audiologist, G.G.C., who that same month after reviewing the claims folder and examining the Veteran concluded that his service-connected tinnitus did not affect physical or sedentary employment. The Veteran is not contending that his service-connected tinnitus affects his ability to be substantially and gainfully employed and P.J.M.'s omission to review the claims folder is not prejudicial to the Veteran. With respect to the Veteran's claim, there is no additional evidence which needs to be obtained. Analysis Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). In March 2005, the Veteran filed a claim for a higher rating for a low back disability. His claim for a TDIU arises from his increased rating claim for a low back disability, which as mentioned above the Board addressed in a November 2011 decision. The record indicates that the Veteran is currently service-connected for the following disabilities: low back, rated 40 percent from March 31, 2005; a right shoulder disability, rated 10 percent from March 31, 2005; a right post operative iliopsoas release, rated 10 percent from March 31, 2005; tinnitus, rated 10 percent from December 3, 2008; left lower extremity radiculopathy, rated 10 percent from October 29, 2012; and right lower extremity radiculopathy, rated 10 percent from October 29, 2012. The Veteran had a combined rating of 50 percent from March 31, 2005, a combined rating of 60 percent from December 3, 2008, and a 70 percent combined rating from October 29, 2012. As during the appeal the service-connected disabilities have a combined rating of 70 percent and at least one disability (low back) is rated 40 percent, the minimum percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) are met. We also note that some service connected disabilities are of common etiology or involve the same medical system. The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Considering the pertinent evidence in light of the above, the Board finds that a TDIU is not warranted. In September 2005, the Veteran stated that he missed more than 6 months of work due to his low back disability. In May 2012, the Veteran asserted that he was unable to maintain gainful employment due to his low back disability and cervical spine disability. He also noted that he was attending a vocational rehabilitation program in the human service field, however he missed many classes due to his low back disability. On private evaluation in May 2007, the Veteran reported that due to high levels of pain he was confined to a bed or lying on a sofa 80 percent to 90 percent of the time. He indicated that he has been unable to maintain gainful employment due to his back pain and neck pain. The examiner noted that the Veteran's right shoulder condition limited his ability to lift, push, pull, and reach overhead. A SSA decision in January 2007 shows that the Veteran has not engaged in substantial gainful employment due to his back and neck problems and it was determined that he had the residual functional capacity to perform less than a full range of sedentary work and could not sustain sedentary work on a regular and continuing basis. A March 2012 special report of training shows that the Veteran is pursuing a vocational rehabilitation program to obtain an associate degree in Counseling and Human Services. His anticipated graduation date is May 2014. The report shows that the Veteran currently was not working in order to focus on his studies. The Veteran's vocational rehabilitation file shows that the Veteran has a high school education and extensive work experience in sales. A Vocational Exploration Worksheet dated in April 2008 shows that the Veteran's employment as a Social Worker would be consistent with his disabilities. A November 2008 counseling record shows that the Veteran's service and nonservice-connected disabilities impose restrictions on his ability to be employed in occupations that would require lifting, standing for a prolonged period, carrying, bending, stooping, pushing, and pulling. It was determined that employment that would limit the aforementioned conditions would be better suited for the Veteran. On VA examination in August 2009, the examiner was of the opinion that the service-connected right shoulder disability impacted the Veteran's occupational activities to the extent that he had problems lifting and carrying. The examiner determined that the service-connected right hip iliopsoas release did not significantly affect the Veteran's occupation. As for the low back, at the time of the August 2009 VA examination, service connection only was in effect for low back strain, not degenerative disc disease, and the examiner concluded that it did not significantly affect the Veteran's occupation. On VA examination in June 2010, the Veteran complained of having problems sitting in class and driving due to back pain. The examiner opined that the service-connected low back disability impacted the Veteran's occupational activities to the extent that he was extensively absent from work when he was employed. He also had decreased concentration and mobility, problems lifting, pain, and lack of stamina. The examiner noted the Veteran's driving was mildly affected. The Veteran was afforded VA examinations in 2012 to determine whether his service-connected disabilities prevent him from following a substantial gainful occupation. As for the service-connected tinnitus and the Veteran's employability, there are 2 VA examinations dated in September 2012 conducted by 2 audiologists, P.J.M. and G.C.K. The examiner G.C.K. after reviewing the claims folder and examining the Veteran concluded that tinnitus would less likely as not impact the Veteran's physical and sedentary employment based on the rationale that the Veteran reported that the tinnitus annoyance level was 7 or 8, it interfered with his sleep, and television noise helped mask out the tinnitus. The examiner P.J.M. opined that the Veteran's tinnitus did not impact the Veteran's ability to work as the Veteran had excellent recognition ability. She noted that the audiologist G.C.K. also concluded that the Veteran's tinnitus did not impact his physical and sedentary employment. The impact of the Veteran's other service-disabilities on his employment were addressed on VA examination in October 2012. The examiner reviewed the claims folder and examined the Veteran prior to rendering any opinion. The Veteran reported that his low back disability increased in severity in the last several months and he was unable to run, play sports, or walk for an extended period of time. He stated that pain and numbness in his legs got worse over the last several months. The examiner noted the Veteran regularly used a cane to ambulate. The examiner concluded that the Veteran's service-connected back condition and peripheral nerve condition impacted his ability to work to the extent that the Veteran would not be able to sit or walk for a long period of time nor would he be able to perform jobs requiring heavy lifting or climbing. As for the service-connected right hip disability, the Veteran reported that he occasionally had pain with squatting. The examiner noted that the Veteran did not report flare-ups that impacted the function of the hip and he did not have any functional loss or functional impairment of the hip. Based on these findings, the examiner concluded that the Veteran's service-connected hip condition did not impact his ability to work. As for the service-connected right shoulder disability, the Veteran reported that he had difficulty lifting a gallon of milk. The examiner opined that Veteran's shoulder condition impacted his ability to work to the extent that it would be difficult for the Veteran to perform jobs requiring heavy lifting above his shoulder. The Board finds that the October 2012 and September 2012 VA examinations are adequate to make a determination on the Veteran's claim for a TDIU. The examinations included a factual discussion in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In October 2012 the examiner concluded that the Veteran's employability was limited only to the extent that he was unable to lift heavy weight, climb, sit or walk for a prolonged period of time. The October 2012 VA examiner's opinion that service-connected disability did not preclude the Veteran's ability to be gainfully employed in a sedentary capacity where he would not have to sit or walk for prolonged periods as he would be entitled to take breaks during the course of a normal work day. The Veteran is currently pursuing an associate degree in human services, which will provide him with more opportunities to be employed in a sedentary capacity that is compatible with his service-connected disabilities. As for the Veteran's service-connected tinnitus, the September 2012 VA examinations and other evidence of record, to include the Veteran's lay statements, shows that it does not affect his physical or sedentary employment. The Board acknowledges that the Veteran received SSA benefits, however being unemployed does not equate to unemployability for the purpose of a TDIU under 38 C.F.R. § 4.16. Furthermore, the finding of disability by the SSA is not binding on VA as VA's determination of unemployability is governed by 38 C.F.R. § 4.16. More importantly, although the determination and the records are evidence, the SSA determination considered consideration of a cervical disability. The cervical disability is not service-connected and may not be considered. The Board has also considered the Veteran's statements. Lay witnesses are competent to testify as to their observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the statements of the Veteran as to his symptoms and their effect on his employment are competent and probative; however, where these statements have conflicted with the findings on examination, the Board finds that the examination findings of the trained health care professionals are entitled to greater weight than the Veteran's lay statements. The medical opinnons were prepared by skilled neutral professionals and are accorded significant probative weight. Regardless of the Veteran's self interest, his opinion is less reasoned than that of the examiners. For the foregoing reasons, the preponderance of the evidence is against the claim for a TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs