Citation Nr: 1323005 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-03 678 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1966 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) and Board remands. FINDING OF FACT The most probative evidence of record indicates the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). May 2005, December 2009, August 2010, February 2011, and November 2012 letters were sent to the Veteran. Although not all letters were not sent prior to initial adjudication, there is no prejudice to the Veteran in proceeding to adjudication of this claim because the letters provided the appropriate notice to the Veteran and were followed by a readjudication of the claim in supplemental statements of the case, including in March 2013. Prickett, 20 Vet. App. at 376. Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records and VA medical records have been obtained. VA provided the Veteran with adequate medical examinations with respect to his service connection claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate). The most recent examinations and opinions in 2012 and 2013 were predicated upon a review of the relevant medical and lay evidence, contained thorough orthopedic and gastrointestinal examinations, and provided opinions with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that a central issue in the persuasiveness of a medical opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Additionally, the Veteran provided testimony at a 2008 Board hearing. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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 v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. A DRO or Veterans Law Judge who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the 2008 hearing, the VLJ noted the issue on appeal but did not specifically address TDIU, as the issue on appeal remained an increased evaluation. There is no prejudicial error, however, as the issues have been explained to the Veteran and his representative via the above-noted VCAA letters. Those letters also requested that the Veteran submit evidence on the elements of TDIU. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the DRO and undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. 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 v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006 This appeal was remanded by the Board in November 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand directed an examination and opinion as to the impact of the Veteran's disabilities on his ability to obtain substantially gainful employment. Subsequent to this remand, the Veteran received VA examinations in December 2012 and February 2013, which contained specific opinions as to what impact the Veteran's disabilities had on his employability. The claim was readjudicated in a March 2013 SSOC. Thus, there is compliance with the Board's remand instructions. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Service connection is in effect for the following disabilities: lumbar spine disability, evaluated as 10 percent disabling, effective July 26, 2002, 20 percent disabling from May 30, 2006, and 40 percent disabling from December 22, 2009; ulcers, evaluated as 10 percent disabling; and lower extremity neuropathy, evaluated as 10 percent disabling from March 30, 2009. The Veteran's combined disability evaluation is thus 30% from May 30, 2006, 40% from March 30, 2009, and 50% from December 22, 2009. See 38 C.F.R. § 4.25 (2012). Thus, the percentage requirements for a TDIU are not met at any time during the appeal period because the Veteran does not have at any time, multiple disabilities that combine to a 70 percent evaluation. 38 C.F.R. § 4.16(a). Therefore, the issue is whether the Veteran is unable to obtain and maintain any form of gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities thus entitling him to referral for an extraschedular TDIU. 38 C.F.R. § 4.16(b). A review of the evidence of record therefore as to the question of referral, a December 2005 report of VA fee basis examination found the Veteran to have a normal gait, with no assistive devices for walking. There was some mild tenderness in the paralumbar soft tissue area. Range of motion testing showed flexion was performed to 90 degrees, extension to 25 degrees, and right and left lateral rotation and flexion to 20 degrees, with pain on ranges of motion. Motor and sensory function was normal. The diagnosis was degenerative arthritis of the lumbar spine. He noted he was not working because he was a student. In a May 2006 VA record, the Veteran stated he was working in a biomedical department. At a March 2009 VA examination with December 2009 addendum, the Veteran reported fatigue, decreased motion, stiffness, weakness, spasms, and pain, particularly on the left side of the lumbosacral region. He reported occasional flare ups of pain. There was evidence of lumbar flattening. Muscle strength, reflexes, and sensory examination were normal. Range of motion testing showed flexion to 20 degrees, extension to10 degrees, and bilateral lateral rotation and flexion to 10 degrees, with objective evidence of pain on active range of motion. The X-ray studies showed mild degenerative changes at L4-S1. At that time, the Veteran reported having not worked for the past 2 to 5 years because he was physically unable to perform. His usual occupation was information technology. He reported last working in 2006 as a biomedical technician. It was noted that the Veteran's low back pain had significant effects on his occupation, resulting in him being assigned different duties, and increased tardiness, as well as causing decreased concentration, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. He was able to arrange a flexible work schedule to accommodate episodes of severe low back pain flare-ups. His back condition did limit his employment opportunities. The Veteran was noted to be a licensed fork lift operator, but no employer would hire him with the potential worker's compensation claims. The examiner noted that the Veteran sat throughout the examination in an odd position so as to limit flexion at his lumbar spine. The examiner also noted that the Veteran was capable of flexing considerably more than range of motion testing demonstrated, as he was able to drive himself to the examination. At a March 2011 VA examination, the Veteran reported feeling unsteady when walking. There was a history of fatigue, decreased motion, stiffness, weakness and spasm. He had pain in the low back that was a constant aching and severe pain with intermittent sharp spasm-like pain. Upon examination, the Veteran was noted to carry his head with a tilt to the left. In gait, he favored his left side and was noted to put weight on his right extremity. There was evidence of lumbar flattening and list. On range of motion testing, flexion was to 30 degrees, and extension was to 5 degrees. Bilateral lateral rotation and flexion were to 10 degrees, all with objective evidence of pain on motion. Reflex and motor examinations were normal. The Veteran's spinal muscles were very tense on range of motion. X-ray studies showed degenerative disc disease with facet joint hypertrophy at L3-L4 with mild neuroforaminal stenosis, bilaterally. The examination report noted that the Veteran's prior business was in the oil business and that he had not been employed, but retired in May 2009 as he was eligible based on age or duration of work. As to effect on work, this disability was noted to cause decreased mobility, problems with lifting or carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. The Veteran underwent a VA examination in December 2012 for his service-connected duodenal ulcer disease. It was noted that the Veteran had not had recent treatment for this condition, and was not on current continuous medication for this condition. This condition was found to have no impact on his work. It was noted that he was treated in 2004 for peptic ulcer disease, with no current symptoms or treatment. A December 2012 VA spinal examination was also conducted. The Veteran reported occasional flare ups of pain that lasted for hours and were relieved with medication. On range of motion testing, he had forward flexion of 70 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Repetition testing did not show any additional loss of range of motion, but did show pain and fatigability. Pain to palpation was noted in the lower back. Guarding and/or muscle spasm were noted, but did not result in abnormal gait or spinal contour. Muscle strength and reflex testing were normal. There appeared to be mild involvement of the sciatic nerve, bilaterally. The Veteran reported occasionally using a scooter or wheelchair to get around. He was noted upon testing to have lumbar spondylosis. The examiner stated that he felt the service-connected back disability would restrict the Veteran to lifting and carrying no more than 10 pounds, as well as no frequent bending, and limited pulling and pushing. A December 2012 VA peripheral nerve examination showed bilateral sciatica that caused mild bilateral paresthesias and numbness, as well as intermittent pain, in the lower extremities. The Veteran was noted to have a modest antalgic gait. The Veteran was found to have symptomatology in both the right and left sciatic nerve consistent with mild incomplete paralysis of the nerve. In summary, the examiner noted that the Veteran could perform sedentary work, even with his service-connected disabilities. He had limitations in endurance that were not medically characterized. He had training in computer informational technology and was not working. This training was consistent with sedentary work. A VA opinion was provided in February 2013. The examiner reviewed the claims file, including the recent examinations. It was noted that the service-connected duodenal disease was not currently symptomatic and caused no limitations on his work. It was also noted that the Veteran had an increase in pain radiating into his legs, but had not had any significant change in treatment since his previous VA examination. At that time, the Veteran's work restrictions for his low back and sciatic nerve condition included no lifting or carrying over 10 pounds. He was considered capable of light work or sedentary work. The examiner noted that the Veteran is a computer specialist and that work conditions for this job met the requirements for light or sedentary work. Within an eight hour day, the Veteran could lift and carry 10 pounds. Restrictions manifested by no pulling or pushing, limited bending and no squatting were noted. The Veteran could stand for up to 5 minutes and walk up to 100 feet to accommodate going to and from the workplace, taking breaks, and utilizing the rest room. There was no limitation in sitting or driving. The Veteran had unlimited use of his upper extremities to include grasping and holding, reaching overhead, and keyboarding. The Veteran could change positions as needed. The Board finds that the evidence of record does not show that the Veteran is unable to obtain and maintain any form of gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. In December 2005 the Veteran stated he was not working as he was a student. In 2009, the Veteran reported having not worked for the past 2 to 5 years. He reported last working as a biomedical technician. It was noted that the Veteran's low back pain had significant effects on his occupation, resulting in him being assigned different duties, and increased tardiness, as well as causing decreased concentration, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. He was able to arrange a flexible work schedule to accommodate episodes of severe low back pain flare-ups. He reported that his back condition limited his employment opportunities, as he was licensed fork lift operator, but no employer would hire him due to potential worker's compensation claims. In 2011, an examiner noted that the Veteran's had been in the oil business and that he was not employed, but retired in May 2009 as he was eligible based on age or duration of work. The examiner noted the disability caused decreased mobility, problems with lifting or carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. In 2012, VA examiners found that the Veteran's service-connected duodenal ulcer disease, which was asymptomatic, had no impact on his work. Examiners also found that the service-connected back and neurological disabilities would restrict the Veteran to lifting and carrying no more than 10 pounds, as well as no frequent bending, and limited pulling and pushing, but that the Veteran could perform sedentary work. One examiner noted the Veteran's training in computer informational technology was consistent with sedentary work. Finally, the 2013 VA opinion was that the Veteran was capable of light work or sedentary work, noting that he was computer specialist and that work conditions for this job met the requirements for light or sedentary work. Although it had been earlier noted that the Veteran was a forklift operator, he was also trained in computer technology or as a biomedical technician and thus was not unemployable. The Board finds competent and credible the lay assertions of record that the Veteran cannot work due to his service-connected disabilities, as he has knowledge of his symptoms, which can be observed and described by a lay person. 38 CFR § 3.159(a)(2) (2012). But a finding of unemployability, or the ability to perform sedentary work, is not a matter capable of lay observation, as such opinions requires specialized education, training, or experience. See 38 CFR § 3.159(a)(2). Thus, any assertions by the Veteran or other lay persons are simply outweighed by the examiner's findings that the Veteran is able to perform certain types of work. Accordingly, the evidence of record, taken as a whole, portrays the Veteran as having employment-related problems caused by his service-connected disabilities. Crucially however, the evidence does not indicate that these disabilities alone result in his unemployability. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for a TDIU. In particular, referral to appropriate authority for consideration on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b) is not warranted, and the benefit sought on appeal is accordingly denied. ORDER Entitlement to a TDIU is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs