Citation Nr: 1317517 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 03-32 139A ) 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 due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously remanded by the Board in January 2011 and again in September 2012. In its January 2011 remand, the Board ordered the agency of original jurisdiction (AOJ) to submit the appeal to the Director of VA's Compensation and Pension Service (Director) for extraschedular consideration. This was accomplished, and a memorandum authored by the Director addressing extraschedular consideration was received in January 2012. In its subsequent September 2012 remand, the Board ordered the AOJ to afford the Veteran a VA medical examination and opinion. VA examinations were afforded the Veteran in January 2013. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In determining the AOJ had afforded the Veteran substantial compliance with the Board's remand orders, the Board notes that a single examination was ordered by the Board within the September 2012 remand, and that a medical opinion was to be obtained regarding the effect of the Veteran's service-connected disabilities, a low back disability and manic depressive reaction, on his employment. Instead, the AOJ afforded the Veteran two separate examinations, a general medical examination and a psychiatric examination, in January 2013. Each examiner then provided an opinion that the Veteran's service-connected disabilities did not, individually, preclude all forms of employment. The Board however, finds these examinations constitute substantial compliance with the Board's remand order, and additional remands are not necessary to comply with the U.S. Court of Appeals for Veterans Claims' holding in Stegall. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This is because the January 2013 VA psychiatric examination concluded the Veteran's service-connected manic depressive reaction was essentially in remission and did not result in any significant impairment, as evidenced by the Veteran's noncompensable rating for this disability. Additionally, as will be discussed in greater detail below, the Veteran essentially asserts that his service-connected low back disability is the chief and sole cause of his alleged unemployability, and does not assert that his manic depressive reaction has a measurable affect on the same. Thus, full development has been afforded the Veteran, and adjudication at this time is proper. A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. FINDINGS OF FACT 1. Service connection has been awarded to the Veteran for a low back disability, with a 40 percent evaluation; and for manic depressive reaction, with a noncompensable evaluation. His combined rating is 40 percent. 2. The Veteran's service-connected disabilities render him unable to obtain and/or retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks a total disability rating based on individual unemployability due to service-connected disability (TDIU). He contends that his service-connected disabilities prevent him from obtaining and maintaining gainful employment. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, 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. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must first refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In the present case, service connection has been granted for a low back disability, with a 40 percent evaluation; and a manic depressive reaction, with a noncompensable rating. The Veteran's combined disability rating is 40 percent. Thus, although he has at least one disability rated at 40 percent disabling, his combined rating is less than 70 percent, and he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Regardless, the Board must also consider entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). The Veteran worked on a full time basis for approximately 20 years, until 1991, as a maintenance man. He also has experience as a courtesy car driver, and has worked on a part-time basis as a photographer. He has a high school education without additional specialized skills or training. He has several nonservice-connected medical disorders, including hypertension, obesity, and arthritis of multiple joints. He has also stated his wife is disabled and bedridden and he takes care of her on a regular basis. VA outpatient treatment records from the mid-1990s confirm the Veteran's reports of chronic low back pain. Clinical findings, however, do not reflect an unusual or extraordinary degree of impairment. A December 1998 x-ray of the Veteran's lumbosacral spine was essentially negative given his age, with only minor degenerative changes present along with several millimeters retrolisthesis at the L5-S1 level. A February 2000 x-ray again reflected only mild degenerative arthritis, with osteophytes and a vacuum disc phenomenon at L4-5. An October 2004 CT scan of the lumbosacral spine suggested a vacuum disc phenomenon at L4-5 and mild spinal stenosis at L3-4. No evidence was seen of an asymmetrical protruding disc. On VA examination in August 2004, the Veteran's claims file was reviewed, and his complaints of chronic low back pain were noted. On objective physical evaluation, however, the Veteran was noted to walk with a normal gait and stand on his heels and toes without difficulty. He did not appear to be in any acute or chronic distress. Range of motion of the lumbosacral spine was full and without pain. Reflexes, sensation, and circulation in the lower extremities were all within normal limits. No neurological impairment was noted, and the examiner found no atrophy or weakness of the musculature of the back or lower extremities. The Veteran underwent a private chiropractic examination in December 2006, conducted by R.D., D.C. The Veteran reported pain in the low back, with radiation into the lower extremities. On physical evaluation, significant limitation of motion was observed, with forward flexion only to 10 degrees, and extension likewise limited to 10 degrees. Pain was also noted beginning at 10 degrees. Multiple muscles were also observed to be in spasm, and tenderness on palpation was elicited along the lumbosacral spine. X-rays confirmed lumbosacral spine scoliosis with concavity to the right, pelvic tilting, severe disc narrowing at several levels, moderate to severe discogenic spondylosis, and moderate to severe degenerative arthritis of the lumbosacral spine. On subsequent VA examination in June 2007, the Veteran was examined by a VA physician and his claims file was reviewed. He denied any history of hospitalizations or surgeries for the low back. He was also without bowel or bladder involvement, and he denied any paresthesia or foot or leg weakness. A pelvic tilt toward the left was noted on physical evaluation. Reflexes and sensation were intact in the lower extremities. Forward flexion was to 45 degrees, with pain beginning at 35 degrees, extension was to 20 degrees with pain beginning at 15 degrees, lateral flexion was to 20 degrees on the left with pain at 15 degrees, and to 30 degrees on the right with pain at 20 degrees, and lateral rotation was to 25 degrees with pain at 20 degrees bilaterally. His low back disability was noted to have a moderate impact on his shopping, bathing, and dressing, and a severe impact on his exercise, travel, and ability to perform chores. In support of his claim, the Veteran has submitted a February 2008 statement from G.S., a rehabilitation counselor. In this statement, G.S. opined that the Veteran's low back injuries and symptoms prevent him from maintaining employment. This statement was based on a review of various medical and other records concerning the Veteran, and a February 2008 telephone interview. The Veteran's age, education, medical history, and prior employment experiences were noted by G.S. The Veteran was noted to have left his prior full-time employment as a maintenance man secondary to his low back pain. Current impairments to employment included significant back pain, limitation of motion, inability to lift heavy objects, and the need to use a cane to ambulate. The Veteran could allegedly stand for up to 30 minutes and sit for up to 60 minutes. He stated a need to shift positions frequently. Based on a review of the Veteran's history and current level of physical impairment, G.S. concluded the Veteran was incapable of performing full-time work, to include sedentary employment. Another VA medical examination was afforded the Veteran in December 2008 at which it was noted that the Veteran took several medications for his low back pain, with moderately effective relief, and that he used a cane. There was no history of urinary or fecal incontinence. He did not have numbness, paresthesias, or leg or foot weakness. His pain was located in his low back, and was characterized as a constant burning with sharp pain on bending. To alleviate his pain he could sit down, relax for awhile, take medication or a hot shower, or stretch. There had been no recent incapacitating episodes of back pain. The Veteran did, however, report weekly flare-ups of his spinal pain, lasting hours at a time and resulting in severe pain. His spine was abnormally contoured in scoliosis. He had spasm in the thoracic sacrospinalis. There was no atrophy. He had guarding and pain with motion. There was tenderness but no weakness. Sensation in the lower extremities was 2+ to vibration, pinprick, light touch, and position sense. Knee and ankle jerks were 2+ and equal. Range of motion of the thoracolumbar spine was as follows: forward flexion to 45 degrees with pain at 35 degrees, extension to 20 degrees with pain beginning at 15 degrees, left lateral flexion to 30 degrees with no pain, right lateral flexion to 20 degrees with pain at 15 degrees, and lateral rotation to 20 with pain at 15 degrees bilaterally. There was no objective evidence of radiculopathy on examination. After examining the Veteran, the examiner concluded the Veteran's low back disability resulted in no impairment in feeding and bathing himself, moderate impairment in shopping, dressing, using the toilet, and grooming, and severe impairment in traveling and performing chores. Exercise, sports, and recreation were prevented by the Veteran's low back disability. A September 2009 statement was also received from C.H., a vocational rehabilitation counselor/consultant. C.H. stated that she had reviewed the Veteran's medical and other records and, along with G.S., interviewed the Veteran via telephone in February 2008. The Veteran's age, education, medical history, and prior employment experiences were noted by C.H. Along with his service-connected low back disability and manic depressive reaction, the Veteran also had diagnoses of hypertension, elevated cholesterol, and arthritis in the knees and ankles. She concluded that the Veteran's low back disability alone prevented him from obtaining and maintaining full-time employment. In rendering this opinion, C.H. opined that even sedentary employment would be prohibited. As noted above, the Veteran's claims file was presented to the Director of VA Compensation and Pension Service for extraschedular consideration. In a January 2012 response, the Director discussed the relevant evidence, including the August 2004, June 2007, and December 2008 VA examination reports, as well as the February 2008 and September 2009 statements from the private rehabilitation counselors. Based on this review of the evidence, the Director concluded that a TDIU based on extraschedular consideration was not warranted. The Director concluded that the objective findings did not support such an award. Specifically, the Director found no evidence confirming the assertion that even sedentary employment was precluded, as the Veteran retained at least some range of motion and ability to ambulate. The Director concluded the Veteran's disability picture was not exceptional or unusual so as to render the schedular diagnostic criteria impractical, and a TDIU was not warranted. A second statement was received from G.S. in September 2012. He clarified that regardless of the Veteran's age, his lack of skills, expertise, and education, when combined with his impairment resulting from his service-connected low back disability alone, would preclude all forms of gainful employment, to include sedentary employment. A second statement was also received from C.H. in October 2012. She stated that regardless of the Veteran's age, his service-connected low back disability, in and of itself, prevented him from all forms of gainful employment, to include sedentary employment. Additional VA examinations were afforded to the Veteran in January 2013. An orthopedic examination included review of the claims file and physical examination of the Veteran himself. His complaints of chronic low back pain were noted by the examiner. On objective evaluation, he had forward flexion to 70 degrees, extension to 20 degrees, lateral flexion to 15 degrees on the right and 20 degrees on the left, and lateral rotation to 20 degrees bilaterally. All movement was without objective evidence of pain on motion, and no additional limitation of motion was noted following repetitive motion. Additional functional loss was noted to result from deformity of the spine, however. Muscle spasm of the thoracolumbar spine was noted to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Muscle strength was 5/5 in the lower extremities bilaterally, without evidence of atrophy or weakness. Reflexes were also 2+ at the knees and ankles bilaterally. Sensory response was also within normal limits bilaterally in the lower extremities. Straight leg raising tests were negative bilaterally. The Veteran was negative for radiculopathy of the lower extremities, and denied any other neurological impairment. The examiner found no evidence of intervertebral disc syndrome. A cane was noted to be required for ambulation. Based on the examiner's physical examination of the Veteran and review of the claims file, the examiner concluded the Veteran's service-connected low back disability did not preclude all forms of employment, as light duty or sedentary employment was not precluded. However, the examiner did not provide any specific rationale for his conclusion. The Veteran was also afforded a VA psychiatric examination in January 2013. The examiner noted that the Veteran had been granted service connection for manic depressive reaction, with a noncompensable rating. After review of the claims file and personal evaluation of the Veteran, the examiner concluded that a current diagnosis of a psychiatric disorder was not warranted, as no abnormality clinical findings were demonstrated. Additionally, the Veteran denied experiencing any current psychiatric symptomatology, and reported he was not receiving any current psychiatric treatment. A Global Assessment of Functioning (GAF) score of 80 was assigned. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). Thus, the examiner concluded the Veteran's manic depressive reaction did not preclude employment. The Veteran has not asserted otherwise. In March 2013, the Veteran's representative submitted another three opinions from the same vocational specialists who had written previously. J.A. wrote that the Veteran's limited skills from his previous work did not transfer to sedentary/light duty job. G.S. wrote that the Veteran continued to experience pain and required a cane for ambulation. He noted that while the VA examiner concluded that the Veteran could be employable in sedentary or light exertion, the examiner did not offer any specific information regarding the findings of the Veteran's functional capacity. As such, G.S. concluded that the Veteran's work experience would require medium and heavy exertion, and was of an unskilled nature which provided no transferable skills to other occupations. Moreover, he explained that the Veteran was not found to be a candidate for vocational rehabilitation or retraining based on the reported vocational test results, which would not change, even if the Veteran was younger. Finally, he asserted that the Veteran's back impairment simply was not compatible with the ability to perform regular routine employment in the light, medium, or heavy categories of work, and it was clear that the Veteran was not capable of even sedentary work on a regular, routine, and ongoing basis. Additionally, C.H. reviewed the VA examination report, and then provided an addendum opinion, noting that there was insufficient rationale for the examiner's opinion that the Veteran's was not rendered unemployable by his service connected disability. She noted that based upon the Veteran's educational achievement levels, lack of direct transferable skills, and due to the nature of his residual functional capacities, she did not believe that the Veteran would be able to engage in the demands of his previous occupations, and he would not be a candidate for retraining, nor did he have the skills that would be directly transferable to alternative employment. It is the established policy of the Department of Veterans Affairs 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). In this case, the multiple private vocational specialists provided well-reasoned opinions explaining why they considered the Veteran's service connected back disability to currently be of sufficient severity to preclude him from obtaining or maintaining substantially gainful employment. These three opinions rebut the examiner's recent opinion and place the totality of the evidence in relative equipoise. In such a situation, VA regulations dictate that reasonable doubt be resolved in the Veteran's behalf. Therefore, TDIU is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Entitlement to a TDIU is granted. ____________________________________________ MATTHEW BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs