Citation Nr: 1322955 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-22 506 ) 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 Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a previously assigned 10 percent evaluation for the Veteran's service-connected lumbar spine disability. In November 2009, the Board remanded the increased rating matter to the RO via the Appeals Management Center (AMC) for additional development. In August 2011, the Veteran testified at a hearing before the undersigned at the RO; a transcript of that hearing is of record. The record was held open for a period of 30 days to afford the Veteran an opportunity to submit additional evidence. In January 2012, the Board again remanded the increased rating matter to the RO via the AMC for additional development. Thereafter, in a March 2012 rating decision, the RO recharacterized the Veteran's service-connected lumbosacral strain as degenerative arthritis of the spine and assigned a 20 percent rating, effective September 30, 2004 (the date of his increased rating claim). The Veteran was presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved that claim. AB v. Brown, 6 Vet. App. 35 (1993). In a May 2012 decision, the Board denied entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine. Thus, the increased rating claim is no longer on appeal before the Board. However, the Board determined that the derivative issue of entitlement to a TDIU was properly raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It remanded that issue for additional development, to include obtaining a VA examination determine whether the Veteran's service-connected lumbar spine disability alone renders him unable to secure or follow a substantially gainful occupation. In June 2013, the Veteran submitted additional evidence to the Board for consideration in connection with the claim on appeal. In a July 2013 statement, the Veteran's representative provided a waiver of RO jurisdiction of such evidence. Thus, the Board may properly consider the newly received evidence. 38 C.F.R. § 20.1304 (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." FINDINGS OF FACT 1. The Veteran's sole service-connected disability is degenerative arthritis of the spine rated as 20 percent disabling, with a combined disability rating of 20 percent. 2. Evidence of record does not indicate that the Veteran's service-connected lumbar spine disability alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the TDIU issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Board finds that the VCAA duty to notify was satisfied by letter sent to the Veteran in July 2012 with regard to the claim of entitlement to TDIU. After the notice letter was provided to the Veteran, the claim was readjudicated in an October 2012 SSOC. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Next, VA has a duty to assist a veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO has obtained service treatment records, records from the Social Security Administration (SSA), and VA treatment records. The Veteran submitted multiple written statements discussing his contentions as well as private treatment records from multiple treatment providers and testified at a hearing before the undersigned regarding the severity of his service-connected lumbar spine disability. The Veteran has not identified any outstanding pertinent evidence related to his TDIU claim. The Veteran was also provided with VA examination regarding his claim for a TDIU rating in August 2012. The Board finds the August 2012 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to determine whether the Veteran could obtain and maintain substantially gainful employment. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Based on the foregoing, the Board finds that there was substantial compliance with the May 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). TDIU 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. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (2012). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (2012). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual 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." 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). 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 rating is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. If the scheduler rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2012). Factors to be considered are the veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. These cases should be referred for extraschedular consideration. 38 C.F.R. § 4.16(b) (2012). Finally, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. The Veteran is seeking a total disability rating based on individual unemployability. His sole service-connected disability of degenerative arthritis of the spine is rated as 20 percent disabling. His combined service-connected disability rating is 20 percent. 38 C.F.R. § 4.25 (2012). As such, the Veteran does not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability, because the Veteran's combined rating for his service-connected disabilities is not 70 percent or more. Therefore, he is not entitled to a TDIU rating on a scheduler basis. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. As noted above, those cases should be referred for extraschedular consideration under 38 C.F.R. § 4.16(b) (2012). In the February 2010 VA spine examination report, the Veteran reported that he retired in 2005 due to medical reasons. The examiner further indicated that the Veteran's low back condition had a significant effect on his usual occupation with decreased mobility, problems with lifting and carrying, difficulty reaching, and pain. Records from SSA listed a primary diagnosis of left shoulder injury with arthroscopy and secondary diagnosis of obesity on his disability determination with an onset date during July 2006. The Veteran's physical residual functional capacity assessment listed a primary diagnosis of s/p left knee replacement and secondary diagnosis of left shoulder arthralgia with other alleged impairments of hypertension. An additional physical residual functional capacity assessment listed a primary diagnosis of s/p shoulder arthroscopy and secondary diagnosis of s/p left total knee replacement with other alleged impairments of history of hypertension. In the February 2012 VA Back Conditions Disability Benefits Questionnaire (DBQ), the examiner indicated that the Veteran's back condition impacted his ability to work, as he was unable to lift heavy objects or walk any significant distance. In a August 2012 VA General Medical Disability Benefits Questionnaire (DBQ), the examiner listed diagnoses of lumbar spine degenerative osteoarthritis, diabetes mellitus, Type II with retinopathy and nephropathy, depression, hypothyroidism, hypertension, total prosthetic left knee replacement, prosthetic right hip replacement, prosthetic left shoulder replacement, history of left ankle osteomyelitis, and chronic venous insufficiency of the left lower leg. On physical examination, the examiner noted the Veteran had significant gait/mobility problems due to left knee replacement, right hip replacement, degenerative arthritis of the right knee, and chronic venous insufficiency of the left lower leg in addition to the degenerative disease of the lumbar spine. The examiner reported that the Veteran's gait was antalgic and that he used a cane. Mobility was noted to be an issue with the left shoulder status post prosthetic replacement. There was also noted to be +2 pitting edema of the left lower leg with scaliness laterally over the lateral malleolus. The Veteran's occupational history was noted to include sales and traveling with his final position as a vice president of a jacuzzi company from 1993 to 2005, leaving the company in 2005 due to medical reasons. His education history was listed as associate's degree with two years post-high school. The Veteran indicated that he retired in 2005 due to orthopedic problems making traveling and standing more difficult. Disabilities that made employment more difficult were listed as: total left knee replacement, total right hip replacement, left shoulder replacement times two, left ankle osteomyelitis, chronic left ankle/leg swelling after osteomyelitis, vascular problems in the left leg, left leg infection, and service-connected chronic back pain. The Veteran indicated that he had not undergone back surgery but was told about three or four years ago that he would benefit from "spinal fusion". The Veteran reported that he volunteered at VA as well as a woman's shelter and could walk up and down the block, walk around the mall, dress himself, bathe himself, and drive a car. He indicated that he could not sit for long periods of time and needed to stretch and move around after 30 minutes. He reported having chronic pain daily, mostly in the low back, knees, and left ankle. After reviewing the claims file, to include acknowledging the findings in the February 2010 and February 2012 VA examination reports, the examiner opined that it was less than 50 percent likely that the Veteran's unemployability was related solely to his service-connected degenerative arthritis of the lumbar spine. The examiner highlighted that when the Veteran left employment in 2005, the primary reason had to do with mobility/orthopedic problems in the knees, hips, and left ankle. Thereafter, he indicated, taking into account solely the lumbar spine disability of degenerative arthritis, that the Veteran would be employable in a sedentary type job, such as a desk clerk, with no lifting, bending, or climbing ladders or stairs. Additionally, the examiner noted that there must be no excess walking and the Veteran must be able to stand up for a few minutes every 30 minutes while at his job. Voluminous private treatment records associated with the record in June 2013 contained findings for numerous nonservice-connected disorders. In an August 2006 private vocational evaluation report, the examiner indicated that the Veteran had significant vocational handicaps as a result of injuries incurred in accidents. In assessing the Veteran's residual functional capacity, the examiner considered the Veteran's upper extremity, lower extremity, and psychiatric impairments. He also discussed injuries to the Veteran's left leg, left ankle, and right knee. It was noted that the Veteran's physical limitations prevented him from returning to the types of jobs he previously held. The examiner found that the Veteran had suffered a significant reduction in his capacity to perform work. He found that it was highly unlikely that the Veteran could secure and retain suitable, gainful employment in a competitive labor market and was, within a reasonable degree of vocational certainty, totally disabled now and for the foreseeable future. The Board has determined that the most probative (persuasive) evidence that specifically addresses the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected lumbar spine disability weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The August 2012 VA examiner based his opinion that it was less than 50 percent likely that the Veteran's unemployability was related solely to his service-connected degenerative arthritis of the lumbar spine on his review of the Veteran's entire claims file. He discussed the medical evidence of record and the lay assertions of the Veteran as well as provided a detailed rationale for his conclusions, considering only impairment from the Veteran's service-connected disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the examiner in the August 2006 private vocational evaluation based his opinion on impairment caused by both the Veteran's service-connected lumbar spine disability and numerous nonservice-connected disorders. The Court has held that medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In recognition of the severity of and impairment caused by his service-connected lumbar spine disability, the Veteran is currently rated as a combined 20 percent disabled. Based on the evidence discussed above, the Board finds that a preponderance of the evidence of record does not demonstrate that the Veteran's service-connected lumbar spine disability alone actually precludes him from engaging in substantially gainful employment. Thus, entitlement to a TDIU rating due to the Veteran's service-connected lumbar spine disability is not warranted. In this case, the Board observes that the Veteran is competent to report symptoms associated with his service-connected lumbar spine disability as well as its' effects on his daily life and occupation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially as to whether he is able to secure substantially gainful employment due to his service-connected lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). For the foregoing reasons, the claim for entitlement to a TDIU rating must be denied. In arriving at the decision to deny the claim, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs