Citation Nr: 1322989 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 04-25 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities, to include on an extraschedular basis of 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision issued by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO, in part, denied the Veteran's claim of entitlement to TDIU. The Veteran appealed this rating action to the Board. When the Board remanded this case in September 2010, the appeal included the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). By a January 2012 rating action, the RO granted service connection for PTSD; an initial 30 percent disability rating was assigned, effective May 15, 2003. Thus, the Board does not have jurisdiction over this issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (Board cannot possess jurisdiction over an issue where a rating decision constituted a full award of the benefit sought on appeal). The matter on appeal was most recently before the Board in July 2012. At that time, the Board remanded the claim to the RO for additional procedural development. Specifically, to have the RO submit the Veteran's case to VA's Director of Compensation and Pension (C&P) for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) (2012). In November 2012, the Director of C&P provided the requested opinion. A copy of the November 2012 decision has been associated with the claims files. Thus, the requested development has been accomplished and the matter has returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include PTSD (30 percent); cervical and lumbosacral spine disabilities (both 20 percent); left knee degenerative changes, tinnitus, hypertension, a neurological disability of the left lower extremity, and left knee instability (all 10 percent disabling); and hearing loss, an appendectomy scar, bilateral atherosclerotic changes of the carotid arteries, and migraine headaches (all zero percent disabling). His combined rating for his service-connected disabilities is 70 percent from May 15, 2003 with one single disability rated at 40 percent disabling (i.e., the combined 20 percent disability ratings assigned to the service-connected lumbar and cervical spine disabilities). 2. The Veteran is unable to obtain or maintain substantially gainful employment because of his service-connected disabilities. CONCLUSION OF LAW The criteria for an award of TDIU on an extraschedular basis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, any error with respect to either the duty to notify or the duty to assist, was harmless and need not be further considered. II. Laws and Regulations The Veteran seeks entitlement to TDIU. A TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). Quite significantly, there are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the Veteran fails to meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), but there is probative evidence indicating he is nonetheless unable to obtain and maintain a substantially gainful occupation because of the severity of his service-connected disabilities, his case must be referred to the Director of Compensation for consideration of possibly granting a TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The severity of his service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on this issue must be addressed. 38 C.F.R. § 4.16(b). III. Legal Analysis The Veteran seeks entitlement to TDIU. He maintains that because of pain stemming from his service-connected lumbar and cervical spine disabilities he has not worked since he retired from military service in 1998. (See VA examination reports, dated in March 2001 and January 2003). As noted above, a TDIU may be awarded on either a schedular or extraschedular basis. As explained immediately below, the Veteran did not meet the schedular requirements for TDIU prior to May 15, 2003. Thus, only the extraschedular basis need be considered. The Veteran's service-connected disabilities include PTSD (30 percent); cervical and lumbosacral spine disabilities (both 20 percent); left knee degenerative changes, tinnitus, hypertension, a neurological disability of the left lower extremity, and left knee instability (all 10 percent disabling); and hearing loss, an appendectomy scar, bilateral atherosclerotic changes of the carotid arteries, and migraine headaches (all zero percent disabling). His combined rating for his service-connected disabilities is 70 percent from May 15, 2003 with one single disability rated at 40 percent disabling (i.e., the combined 20 percent disability ratings assigned other service-connected lumbar and cervical spine disabilities). The Veteran met the percentage requirements for TDIU as of May 15, 2003 when his combined service connected disability rating was 70 percent, which included a single 40 percent disability rating that consisted of a combination of the two (2) 20 percent disability ratings assigned to his service-connected lumbar and cervical spine disabilities. In its July 2012 remand, the Board remanded the TDIU issue for referral to the VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). The Director of C&P provided an opinion in November 2012, the contents of which are discussed below. Because the referral and opinion required by 38 C.F.R. § 4.16(b) have been obtained, the Board can now consider whether a TDIU is warranted under that regulation, and it is not bound by the conclusions of the Director of VA's Compensation and Pension Service. See Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009) (holding the Board could review determinations of the Director of Compensation and Pension with regard to extraschedular ratings under 38 C.F.R. § 3.321 (2012)). On VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated and signed by the Veteran in December 2002, he reported that he had not worked since he had retired from the United States Army in December 1998. He indicated that he was unemployed due to difficulty with prolonged sitting and standing in an academic environment due to spinal and knee injuries/conditions. He reported that he had four years of college and that he had undergone "Troops to Teachers" certification training in August 1999, but that he had withdrawn from the course in November 1999. The Veteran indicated that he had not sought employment. (See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated and signed by the Veteran in December 2002). There are VA and private opinions that address the affect that the Veteran's service-connected disabilities have on the Veteran's ability to sustain and maintain substantially gainful employment. At the close of a January 2003 VA examination, the examiner concluded that he could not assess the Veteran's service-connected disabilities in relation to his employment because he had not been employed since he had retired from military service. However the VA examiner indicated that if the Veteran were to seek employment, that he would have numerous limitations that would require compensation and that any employment would have to be of a sedentary nature that would include an ability for him to move about ass needed due to his lumbar and cervical spine conditions. The VA examiner also opined that the Veteran would not be able to bend, lift or constantly view a computer screen because of his cervical spine disability. (See January 2003 VA examination report). A Setpember 2003 VA discharge summary report reflects that the Veteran had completed a seven (7) week PTSD program. At the end of the report, a VA physician's assistant (PA) opined that the Veteran was unemployed due to his PTSD. He advised the Veteran to avoid smoking and alcohol. (See September 2003 VA discharge summary report). Also of record is a November 2006 report, prepared by A. G., M. D.. After a psychiatric evaluation of the Veteran, Dr. A. G. concluded that the Veteran's PTSD was severe and that he was unable to work at that time and in the foreseeable future. Dr. A. G. maintained that the Veteran's ability to concentrate on tasks at hand was very low. A March 2007 Social Security Administration (SSA) award reflects that that agency had awarded the Veteran disability benefits based on primary and secondary disorders of the back (discogenic and degenerative) and affective; or mood disorders, respectively, effective from January 1999. VA examined the Veteran in October 2009 to determine the current severity of his service-connected lumbar and cervical spine disabilities and their affect, if any, on his ability to follow a substantial gainful occupation. After a physical evaluation of the Veterans' spine, the VA examiner concluded that when considering the Veteran's lumbar and cervical spine and PTSD problems, as well as other "medical problems," he was unable to secure or follow a substantial gainful occupation. In March 2011, VA examined the Veteran to determine the current severity of his PTSD. After a mental status evaluation of the Veteran, the VA psychologist concluded that there was no evidence of total occupational and social impairment due to PTSD signs and symptoms, but that there were PTSD signs and symptoms that were transient or mild that decreased work efficiency and the Veteran's ability to perform occupational tasks during periods of significant stress. The Director of C&P provided an opinion in November 2012. After a review of the Veteran's initial claim for TDIU benefits (i.e., VA Form 21-8940, dated and signed by the Veteran in December 2002), he concluded that the evidence of record did not establish that the Veteran was unemployable due to service-connected disabilities. The Board finds that the evidence in favor of granting a TDIU is at least in equipoise and, resolving any reasonable doubt in favor of the Veteran, TDIU is granted. The medical opinions are conflicting as to whether the Veteran's service-connected disabilities alone rendered him unable to obtain or maintain gainful employment. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The C&P Director opined that the evidence did not establish that the Veteran was unemployable due to his service-connected disabilities prior to meeting the schedular requirements for a TDIU (i.e., May 15, 2003). The C&P Director did not review or provide any discussion of the evidence, such as the VA PA's and A. G., M. D.'s September 2003 and November 2006 opinions, respectively, wherein they both found the Veteran employable due to his PTSD, in formulating his blanket and conclusory opinion. The C&P Director did not also take into consideration the lay statements provided by the Veteran, wherein he attested to the fact that he had not worked since his discharge from military service, primarily due to his PTSD and pain stemming from his service-connected lumbar and cervical spine disabilities. In contrast, the September 2003 VA PA, Dr. A. G. and the October 2009 VA examiner each provided their respective opinion after an examination (mental or physical) of the Veteran. Dr. A. G. and the October 2009 VA examiner also based their respective opinions on a recitation of the Veteran's medical and psychiatric (Dr. A. G.) history, to include his statements on how his PTSD and cervical and lumbar spine disabilities affected his ability to secure employment. Dr. A. G. and the October 2009 VA examiner each provided a detailed clinical analysis as to the Veteran's mental and physical status, respectively. Although the October 2009 VA examiner acknowledged that the Veteran had some "other medical problems" that had affected his ability to work, he essentially found his service-connected lumbar and cervical spine disabilities, as well as his PTSD, to have rendered the Veteran unable to secure or follow a substantial gainful employment. The October 2009 VA examiner's findings are also consistent with the SSA's decision to award the Veteran disability benefits based on his back and psychiatric disabilities. The Board notes that qualification for SSA disability benefits does not automatically qualify a veteran for TDIU, even where, as here, the SSA determination was based, in part, on the Veteran's degenerative disc disease of the cervical and lumbar spine. The SSA determination is not controlling or binding on VA, although it is pertinent evidence, and represents evidence to be considered in the VA determination of qualification for TDIU. See Martin v. Brown, 4 Vet. App. 136, 140 (1993); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370-71 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Nonetheless, the Board must give the body of SSA evidence, including the SSA determination, appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). In view of the foregoing, the Board finds that the Setpember 2003 VA PA's, Dr. A. G.'s November 2006 and the October 2009 VA examiner's opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on this evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 4.16(b). ORDER The claim for TDIU is granted on an extraschedular basis. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs