Citation Nr: 1316377 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 07-18 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active service from January 1956 to December 1959 and from February 1960 to September 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Atlanta, Georgia, Regional Office (RO) which, in pertinent part, denied a TDIU. The Veteran presented testimony at a Board hearing in October 2010. A transcript of the hearing is associated with the Veteran's claims folder. The Board remanded the appeal in May 2011 and December 2011 for further development. During the pendency of the appeal, the Veteran has remained ineligible for schedular TDIU consideration under 38 C.F.R. § 4.16(a). Hence, the Board was precluded from granting the claim without referring it first to the Director of Compensation and Pension Services (C&P Director) for extraschedular consideration. 38 C.F.R. § 4.16(b). In December 2012, the Board found that the claim warranted referral to the C&P Director for extraschedular consideration. The C&P Director denied an extraschedular rating in January 2013, and the claim returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is service connected for chronic low back pain, evaluated as 20 percent disabling; neuritis of the left sciatic nerve, evaluated as 20 percent disabling; hypertension, evaluated as 10 percent disabling; hemorrhoidectomy, evaluated as 10 percent disabling; dermographism, pruritis scroti and early vitiligo, evaluated as 10 percent disabling; left ureterolithotomy, evaluated as 0 percent disabling; and post operative excision, left inferior parathyroid edenoma, evaluated as 0 percent disabling. His combined rating is therefore 50 percent. 2. Resolving reasonable doubt in favor of the Veteran, the service connected disabilities have prevented the Veteran from obtaining or retaining gainful employment. CONCLUSION OF LAW The criteria for TDIU, on an extraschedular basis, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is awarding TDIU on an extraschedular basis, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Laws and regulations In order to meet the criteria for an award of TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 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). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service connected for chronic low back pain, evaluated as 20 percent disabling; neuritis of the left sciatic nerve, evaluated as 20 percent disabling; hypertension, evaluated as 10 percent disabling; hemorrhoidectomy, evaluated as 10 percent disabling; dermographism, pruritis scroti and early vitiligo, evaluated as 10 percent disabling; left ureterolithotomy, evaluated as 0 percent disabling; and post operative excision, left inferior parathyroid edenoma, evaluated as 0 percent disabling. His combined rating is 50 percent. See 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Nonetheless, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service (C&P Director) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. The C&P Director concluded in January 2013 that the Veteran was not unemployed or unemployable due to his service connected disabilities and that TDIU was not warranted under the provisions of 38 C.F.R. § 4.16(b) (2012). The Board; however, has the authority to review this determination. See Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009) (holding the Board did not exceed its authority when it reviewed a determination by the Director of C&P denying an extraschedular rating under 38 C.F.R. § 3.321(b) (2012)). Factual Background At the Veteran's October 2010 Board hearing, he testified that he has been denied employment due to physical limitations. Specifically, he testified that his back disability and sciatic problems prevented him from standing for any length of time. They also caused him to move slowly. He stated that he was fired from his most recent job because he was just too slow. He also suspected that his hypertension had caused prospective employers to not hire him. He admitted that his skin condition, genital urinary condition, and thyroid conditions did not affect his ability to find employment. He testified that he had gone to vocational rehabilitation and had been told that employment was not feasible. The Veteran submitted a May 2004 separation notice from his employer (Robert Bosch Corporation). It stated the Veteran has been employed by the company since March 1998; and that he was being fired because "productivity goals have never been met on a consistent basis since 11-7-03...You were issued a final warning on 2-3-04 and given 12 weeks to improve. Eight of last 12 weeks have been below standard productivity requirements." The Veteran underwent vocational rehabilitation. However, an April 2005 Narrative Statement from Job Placement Services reflects that at that time, the Veteran indicated that he was not pursuing employment. Subsequent Narrative Statements in August 2005 and September 2005 show that the Veteran insisted on working within 20 miles of his home, thereby diminishing the number of opportunities available to him. A November 2006 Final Evaluation Report indicates that the Veteran has been found infeasible to return to work and that the Veteran was able to acknowledge that he was not competitive for employment. However, the Board notes that the impediments to work were a combination of service connected disabilities and non-service connected disabilities. It was noted that the Veteran suffered from hypertension (which is service connected), as well as shaking hands and vision problems that are not service connected. The report also noted anger outbursts which are not service connected. On January 26, 2007, the Veteran underwent a Department of Veterans Affairs Independent Living Needs Assessment. The examiner noted the Veteran's service connected disabilities. The Veteran reported that he has difficulty going up and down steps, and that the staircases in his home either have no handrails or need replacement handrails. He also stated that he has difficulty getting in and out of the bathtubs and showers. He reported that he has difficulty dressing his lower extremities, and that he has to sit down in order to get dressed. He reported that he is able to do 50 percent of the cooking and 20 percent of the cleaning without difficulties. His wife handles the remaining cooking and cleaning duties. He stated that he would like to do some volunteer work in schools; but that the jobs for which he has made inquiries require a college degree (which the Veteran does not have). The examiner opined that "Due to the combination and severity of [the Veteran's] service connected disabilities, it is felt that he is not employable." A subsequent Concurrence for Infeasibility for VR&E Services dated in June 2007 states that the Veteran "acknowledged that at this time he could not return to competitive work because of his age, the effects of his age on his eye sight & writing, and limits associated to his [service connected disabilities] of limited standing and sitting." The Vocational Rehabilitation Counselor concurred that it was infeasible for the Veteran to work. Subsequent rehabilitation reports (dated February to November 2009) reflect that the Veteran's home was outfitted with grab bars in the bathroom, a shower chair, a perching stool for the kitchen, and handrails for all the Veteran's staircases. The Veteran underwent VA examinations in January 2012. The examiner reviewed the claims file in conjunction with the examination. The Veteran complained of constant, dull lower back pain, with sharp pain (of 10/10 severity) occurring approximately once per week. He reported that these flare-ups of intense pain last approximately one day. He also complained of slowness of movement, left numbness, and tingling from his back to his left lower leg. Upon examination, he was able to forward flex to 75 degrees, with objective pain beginning at 70 degrees. The examiner noted that the Veteran had functional loss/impairment of the thoracolumbar spine, and that he had localized tenderness and/or soft tissue of the thoracolumbar spine. The Veteran also had moderate radicular pain (left leg numbness and tingling), though the examiner found no objective evidence of it. He reported that he occasionally uses a cane for ambulation. The examiner noted that there has been objective evidence (in the form of x-rays) of arthritis. She opined that the Veteran is not able to lift more than 50 pounds; and that he is unable to perform a job that requires prolonged standing (more than four hours at a time). However, she opined that he could perform mild lifting (fewer than 50 pounds), limited walking, bending, and a job that alternates from sitting to standing. He could do clerical and/or supervisory work. Regarding the Veteran's left sciatic nerve neuritis, she opined that he would have difficulty with lifting greater than 50 pounds or standing for more than two hours at a time. However, he could perform duties requiring alternating sitting and standing, and any sedentary work. The examiner noted that the Veteran is on medication for his hypertension; but that the disability does not impact his ability to work. Likewise, she opined that the Veteran's mild to moderate hemorrhoids, skin disability, kidney/ureter disability, and thyroid disability, do not impact his ability to work. Analysis At his last job, the Veteran reports that he was unable to keep up because it involved bending, stooping, lifting, and moving quickly. See October 2010 hearing. He testified that he was fired because he was just too slow; and the May 2004 separation notice from the Veteran's former employer substantiates this contention. Beginning in November 2006, the vocational rehabilitation reports consistently state that it is infeasible for the Veteran to be employed due to disability. The issue then becomes whether his inability to be employed in a manner consistent with his occupational background is due solely to service connected disabilities. Briefly, the Board observes that the Veteran has a high school education and his occupational experience is as a laborer in various technical fields. (See Veteran's VA Voc Rehab Resume). There is conflicting evidence on whether the Veteran's service connected disabilities, alone, wholly preclude gainful employment consistent with the Veteran's education and occupational experience. It is the Board's fundamental responsibility to evaluate the probative value of all evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). The January 2007 VA counselor's recommendation supports the claim. She considered the service and non-service connected disabilities and specifically opined that "[d]ue to the combination and severity of [the Veteran's] service connected disabilities, it is felt that he is not employable." She notes the general difficulty the Veteran has with movement and references his need for specially adaptive equipment in his house for daily activities. Although the Veteran is noted to have additional non-service connected musculoskeletal disorders, it is not clear that the overall impact from these is distinguishable from the service connected low back and left leg neuropathy disabilities. When such a distinction is not possible, all the manifestations will be considered part of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). The January 2007 VA counselor's assessment is plausible and consistent with the record. Caluza, 7 Vet. App. at 510-511. The Board considers it probative evidence to support the claim. The January 2012 VA examiner conducted thorough examinations, and concluded that the Veteran could do sedentary work. His conclusion is not inherently implausible. However, its probative value is diminished by his failure to consider additional evidence suggestive of a greater degree of severity from service connected disabilities. He did not directly comment on the January 2007 VA counselor's opinion. Moreover, the record contains documentation of the extensive accommodations made to the Veteran's home in order to allow him to be functional in it. It appears these accommodations are necessary primarily as a result of the Veteran's service connected disabilities of low back pain and neuritis of the left sciatic nerve (rather than non service related issues of poor eyesight and outbursts of anger). For these reasons, the January 2012 VA examiner's assessment is not wholly persuasive. Notably, the January 2012 VA examiner agreed that service connected disabilities significantly limit physical occupational activity. The Veteran is a laborer and would have difficulty resuming gainful employment in a sedentary job. The January 2012 VA examination report lends support to the Veteran's claim in consideration of his occupational experience. In summary, the evidence shows that the Veteran is an unemployed laborer. While he has considerable non-service connected disabilities, he would have significant occupational impairment in any type of manual labor due to service connected disabilities alone. By resolving reasonable doubt in the Veteran's favor, the Board finds that his service connected disabilities preclude him from securing and following a substantially gainful occupation consistent with occupational history and education. Entitlement to a TDIU on an extraschedular basis is granted. Anderson, 22 Vet. App. at 429; 38 C.F.R. §§ 3.102, 4.16(b). ORDER Entitlement to TDIU on an extraschedular basis is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs