Citation Nr: 1316050 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 04-03 412A ) 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). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to February 1980 and subsequently served in the Naval Reserve with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran later testified before the undersigned Acting Veterans Law Judge (VLJ) at a July 2008 video conference hearing. A transcript of the hearing is of record. The claim for a TDIU was remanded for additional evidentiary development in a September 2008 Board decision. In a September 2010 decision, the TDIU claim was noted to be inextricably intertwined with another issue that was before the Board at the time. Thus, a decision as to the TDIU claim was deferred pending resolution of the other issue. Most recently, in June 2012, the claim for a TDIU was once again remanded for evidentiary development. The development has been completed, and the claim has now been returned for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran's only service-connected disability is chronic low back strain with mild degenerative changes, rated as 40 percent disabling. 2. The Veteran's post-service work history includes driving a truck, working in security, and a stint at the post office in the late 1990s. In 2012, he reported that he was attending classes to obtain a college degree. 3. The Veteran's service-connected lumbar spine disability alone is not of such severity to preclude him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 415, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in June 2003, July 2006, January 2011, June 2012, and February 2013) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to a TDIU, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the July 2006 and January 2011 letters mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. As requested by the Board in a June 2012 remand, additional evidentiary development was requested regarding whether the Veteran's service-connected disability(ies) rendered him unable to secure and maintain substantially gainful employment. The requested development was completed as noted by the July 2013 report added to the record. The examiner's opinion was based on review of the entire claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Moreover, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing which included testimony regarding numerous claims on appeal, to include the claim for a TDIU, the undersigned asked the Veteran, in pertinent part, to explain why his back condition made him unemployable. See hearing (hrg.) transcript (tr.) at pg. 24. The Veteran was assisted at the hearing by an accredited representative from The American Legion service organization. The representative and the undersigned asked questions to ascertain the severity of the symptoms of the Veteran's service-connected low back disorder and how it affected his ability to be employed. All pertinent evidence that might substantiate the claim was identified by the Veteran or the representative and has since been obtained. The hearing focused on the elements necessary to substantiate the claim for a TDIU, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for a TDIU. Therefore, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012). Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Further, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield and Dingess, supra; Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). TDIU A TDIU is a rating, not a disability. It merely means that a veteran has met certain qualifications entitling him to a total disability rating. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). TDIU 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. § 4.16(a) (2012). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. The Veteran's only service-connected disability is chronic low back strain with mild degenerative changes, rated 40 percent disabling. The criteria for consideration a total disability rating under the provisions of 38 C.F.R. § 4.16(a) are not met. Consequently, the remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation. 38 C.F.R. § 4.16(b) (2012). The Board emphasizes that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires 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) (2012). Indeed, where, as in this case, a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). Individual unemployability must be determined without regard to any nonservice connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); see also 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 a veteran's favor. 38 C.F.R. § 4.3 (2012). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro, supra. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Background Review of the record reflects that the Veteran has indicated post-service work history as a truck driver and in security. He also reported working at the post office in the mid to late 1990s. He was treated during service for back problems after a lifting injury and service connection has been in effect for many years. The current 40 percent rating, effective since September 2002, was established by rating action in March 2003. The increased rating was primarily granted based on findings made at a VA examination in March 2003. At that time, the Veteran said that his back pain radiated to his legs and to his upper back. He wore a belt for aid and used a TENS unit for his pain. He also complained of pain in the ankles, knees, and neck. X-rays of the lumbar spine showed mild degenerative change. Straightening of the normal lordosis suggested muscle spasm. The record reflects that the Veteran was awarded Social Security Administration (SSA) benefits in a February 2003 decision. The grant noted that the Veteran's disability began in June 2002. The primary diagnosis was psychotic disorder and a secondary diagnosis was torn torticollis. When the spine was examined by VA in January 2007, the Veteran reported daily low back symptoms. His symptoms worsened when standing or walking for longer periods of time or when bending or twisting. He also seemed to get worse after sitting for long periods of time. He occasionally experienced unsteadiness on his feet, but denied falling, dizziness, visual disturbances, erectile dysfunction, or bowel problems. He could walk for a couple of blocks, but no more than this without having pain in the ankles and knees. He could not stand any longer than 10 minutes. He wore a back brace, but did not use a cane or other assistive device. The Veteran was currently unemployed but had worked as a truck driver and as a security officer. He said that he was unable to work for long periods of time due to his back, ankles, and knees. The Veteran's activities of daily living were impaired in that he was unable to stand or walk for long periods of time. He was unable to play sports or do any physical exertional activity because of this. He had no medically prescribed incapacitating episodes over the last 12 months. On examination, the Veteran had relative preserved lumbar lordosis and cervical lordosis. He had tenderness to palpation in the bilateral lumbar paraspinal muscles. Range of motion (ROM) of the lumbar spine showed forward flexion from 0 to 60 degrees with pain from 20 to 60 degrees. He exhibited 0 to 30 degrees of extension with pain. He also had 0 to 30 degrees of left and right lateral flexion with pain at the end of ROM on repetitive testing. He had 0 to 30 degrees of left and right lateral rotation with pain at the very end of ROM in the bilateral lumbar paraspinal area. He had a negative Lasegue's sign. He had intact sensation bilaterally. He was able to stand with a normal posture and ambulated with a normal gait without any abnormalities. Lay statements added to the record in 2007 attest to the fact that the Veteran had various disabling conditions to include a psychiatric disorder and pain associated with his back, neck, knees, and ankles. Subsequently dated records reflect continued treatment for the Veteran's chronic back pain, but they primarily show treatment for nonservice-connected conditions, to include a psychiatric disorder and complaints associated with the neck, ankles, and knees. For example, see the VA examination report dated in September 2009. In March 2011, VA exam of the back was normal. The Veteran had lost his TENS unit and wanted another one. When examined by a VA nurse practitioner in July 2012, the diagnosis was back strain. ROM testing of the lumbar spine showed forward flexion to 75 degrees with pain at 50 degrees. Extension was to 20 degrees with pain at 10 degrees. Right lateral flexion was to 30 degrees with pain at 20 degrees, and left and right lateral flexion and rotation, bilaterally, were to 30 degrees with pain at 5 degrees. There was additional limitation after repetitive ROM testing. Neurological testing was within normal limits. The examiner opined that the back strain did not preclude the Veteran from performing light duty or sedentary employment. She added that given the Veteran's report of inability for prolonged sitting, ideally, he would be afforded the opportunity for frequent position changes to alternate between sitting and standing. He was close to obtaining an AA degree and reported switching to online classes so he would not have to sit in a classroom for a complete hour. He was living independently, performing all activities necessary for daily living thereby demonstrating adequate physical capabilities for appropriate gainful employment. In February 2013, the Board requested that additional review of the Veteran's claims file be accomplished by a physician prior to making a determination regarding the claim for a TDIU. In a July 2013 report, the claims file was reviewed by a VA physician who also conducted a telephone interview with the Veteran. She opined that the Veteran's low back disorder would not preclude light duty or sedentary employment. She agreed with the findings of the nurse practitioner as summarized above. Virtual VA treatment records dated in 2103 show treatment essentially for the Veteran's psychiatric difficulties. Analysis On review of the record, the Board finds that the lay and medical evidence of record preponderates against a finding that the Veteran is incapable of performing substantially gainful employment due to his service connected-disabilities. As noted above, the Veteran has been attending college classes, and has employment history in truck driving and in security. He has not worked full time since the late 1990s (see hrg. tr. at pg. 31). Also as evidenced above, the SSA determined (in 2003) that his inability to be gainful employed was primarily due to a psychiatric disorder. Although VA is required to consider the SSA's findings, VA is not bound by their conclusions. Adjudication of VA and Social Security claims is based on different laws and regulations. Additionally, the award of SSA disability benefits was based on nonservice-connected disabilities as reported above. He now claims that his service-connected back disorder alone precludes employment. In support of his claim are his own statements attesting to the fact that he is unemployable due to his back condition. Conflicting with the Veteran's assertions are a 2012 VA nurse practitioner's opinion and a 2013 VA examiner's opinion that the Veteran is not precluded by his back disorder from substantially gainful employment. It was the nurse's opinion, after examination of the file and evaluation of the Veteran, that the Veteran's back strain did not preclude light or sedentary employment, particularly when the Veteran was afforded the opportunity for position changes. Her opinion was reviewed by a VA physician in 2013, and after her own review of the file and telephone interview of the Veteran, she agreed that he was not precluded from gainful employment as a result of his back strain. It is noted that the examination reflects no more than moderate limitation of motion as summarized above. (Note: Normal ranges of motion of the thoracolumbar spine are to 30 degrees in extension, to 90 degrees in flexion, to 30 degrees in lateral flexion, and to 30 degrees in rotation. 38 C.F.R. § 4.71, Plate V (2012)). Moreover, the record is negative for any incapacitating episodes regarding the low back, and his complaints of pain in the neck, ankles, and knees, and his significant psychiatric disorder are not service-connected conditions. And while consideration has been afforded the lay statements of record, it is noted that they attest to the fact that the Veteran has various health problems, not just his back disorder, which make him unemployable. Hence, the overwhelming majority of the competent evidence shows that, if the Veteran is unable to work, it is due to nonservice-connected disabilities. While the statements in support of the Veteran's claim have been considered, their opinions are not corroborated by the clinical findings in the record as the claimant's lumbar spine disorder reflects no more than mild degenerative changes and no more than slight to moderate limitation of ROM. The Board finds that the VA examiner's 2013 report, with the opinion as summarized above, is the evidence most probative as to whether the Veteran warrants a TDIU. The VA examiner's opinion was based on a review of the complete medical records and telephone interview of the Veteran. Thus, it takes into account the medical evidence in favor and against the claim, and also makes references to specific physical findings set forth throughout the medical record. This latter fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded great evidentiary weight to the VA specialist who reviewed the record, to include the Veteran's testimony and statements and reviewed the entire file, in forming an opinion regarding the Veteran's ability to be gainfully employed. The Board acknowledges the Veteran's assertions that he is unable to work due to his service-connected back disorder. It must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). However, while the Veteran's statements asserting that his service-connected back disorder alone prevents him from securing or following any substantially gainful employment are considered credible, the Board must also compare the competency of those statements in the context of the negative opinions re his unemployability because of service-connected disability. In this regard, although the Veteran maintains that he is competent to say how his service-connected disorder affects his ability to function in the workplace, as a layperson, his statements with respect to his unemployability are not as probative as those of care providers who have special training that permits them to comment on how specific disorders affect employability. Consequently, the Board must find that if the examiners' opinions are based on an adequately expressed rationale, the Board must give these opinions greater evidentiary weight. In this regard, the examiners have essentially found against the Veteran based on the premise that the Veteran is capable of sedentary employment because his physical impairments do not preclude such employment, and the Veteran would likely be permitted the ability to alternate between sitting and standing, and bases these opinions at least in part on the fact that because the Veteran has no impairment concerning the ability carry out the activities of daily living, he is capable of sedentary employment. The Veteran and his representative take exception to the basis of this conclusion but do not offer any expert opinion to dispute this conclusion or authority for the argument that this is an unacceptable rationale. Moreover, the Board finds it significant that neither the Veteran nor his representative argue that the Veteran is not sufficiently educated to be able to engage in some kind of sedentary employment. They instead argue that his service-connected disability precludes such employment without any expert opinion to substantiate their assertions. With respect to the Veteran's argument that his use of medication for his back also is an independent or contributing factor in his unemployability, this assertion is also not supported by any medical opinion of record. In addition, the Board specifically requested that a VA physician consider this fact, and while the physician recently noted her review of a VA outpatient record referencing the Veteran's use of such medications, she nonetheless concurred with the previous examiner's opinion that that the Veteran was not unemployable as a result of his service-connected disability. Therefore, in comparing the evidence in support of the claim and that which is against, even giving the Board's opinion that the Veteran's statements are credible, those credible statements are overshadowed by more persuasive, competent, and uncontradicted medical opinions that dispute his employability based on adequately stated rationales, and the record further reveals that the Veteran has other nonservice-connected disorders that SSA considered in rendering its determination that the Veteran was unemployable for SSA benefit purposes. For the foregoing reasons, referral of the case to the Director of C&P Service for determination as to entitlement to a TDIU rating is not warranted. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert, supra. As such, the appeal is denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs