Citation Nr: 1323178 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 07-00 804 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and D. G. B. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to December 1977. This case was previously before the Board of Veterans' Appeals (Board) in October 2009 and March 2012. Each time, it was remanded for further development to the VA Appeals Management Center (AMC) in Washington, D.C. In October 2009, the Board directed the AMC to obtain the Veteran's records from the Social Security Administration, as well as records reflecting the Veteran's VA treatment from October 2006 through the present at the VA Medical Centers (MC) in Durham, Salisbury, and Winston-Salem, North Carolina. The Board stated that the Veteran was then to be examined, in part, to determine if his service-connected disabilities prevented the Veteran from working. In March 2012, the Board directed the AMC to obtain records reflecting the Veteran's VA treatment from May to November 2009 and after March 2010 at the VAMC in Salisbury, North Carolina. The Board stated that the Veteran was then to be examined, in part, to determine the impact of his service-connected disabilities on his employability with consideration of SSA findings, the effects, if any, on the Veteran's employment due to medications taken for the service-connected disabilities, and the Veteran's work history as a laborer, carpenter, and sheet-rock specialist. An examination was subsequently provided in April 2012 with a supplementary opinion in February 2013. Following the requested development, the VA AMC confirmed and continued the denial of entitlement to a TDIU. Thereafter, the case was returned to the Board for further appellate action. Upon review of the record it appears that the RO has substantially complied with the Board's remand directives. The RO was asked to consider entitlement to a TDIU both on a schedular and extraschedular basis, as the Veteran only met the schedular requirement for a TDIU as of April 6, 2010. The March 2013 SSOC reflects that the RO considered evidence dating back to December 2004 when the Veteran reportedly last worked - therefore, the extraschedular criteria were, in effect, considered. Thus, the case is now ready for appellate review. In August 2009, during the course of the appeal, the Veteran had a hearing at the RO before the undersigned Acting Veterans Law Judge. The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) (2012) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the transcript of the hearing shows the presiding Acting Veterans Law Judge identified the material issue, took testimony from the Veteran and a witness, ensured that evidence cited by the Veteran had been associated with his claims folder, asked the Veteran about his employment background, inquired about the impact of his service-connected disabilities on his employment, and asked when he was last examined by VA. As such, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). The Veteran previously was represented by The American Legion. However, on a VA Form 21-4138 dated in March 2012, the Veteran indicated that he had previously revoked his Power of Attorney with American Legion. Under 38 C.F.R. § 20.600, an appellant "will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." This necessarily includes the right to revoke power of attorney from any representative he has appointed. Thus, the Board finds that the Veteran has properly revoked power of attorney previously assigned to his representative under the provisions of 38 C.F.R. § 14.631(f)(1) . FINDINGS OF FACT 1. The Veteran has a combined rating of 70 percent due to the following service-connected disabilities: degenerative joint disease of the lumbosacral spine, evaluated as 40 percent disabling; folliculitis, evaluated as 30 percent disabling; the residuals of surgery to repair a torn right medial meniscus, evaluated as 20 percent disabling; and right knee arthritis, evaluated as 10 percent disabling. 2. The Veteran has an Associate's Degree and work experience in the construction industry, including as a superintendant. 3. The Veteran's service-connected disorders, by themselves, do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim for a TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In January 2006, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA informed him of the criteria for a TDIU in a June 2006 letter prior to the initial adjudication of his claim in August 2006. VA also notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of records reflecting the Veteran's VA treatment from January 2005 through June 2012, a November 2005 statement from the Veteran's wife, a July 2006 report from a former employer, the Veteran's Social Security records, records reflecting the Veteran's treatment by D. F. M., M.D., from March 2008 to February 2009, and the transcript of the Veteran's August 2009 hearing before the undersigned Acting Veterans Law Judge. In April 2008, March 2009, April 2010, and April 2012, VA examined the Veteran, in part, to determine the extent of impairment attributable to his various service-connected disabilities, including their impact on his ability to work. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In April 2011 and February 2013, the Veteran's claims file was reviewed and opinions were rendered as to whether the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal During his August 2009 hearing, the Veteran testified that he was unable to work due to his service-connected disabilities. He testified that he had to go up and down stairs on one of his work-sites as a foreman in construction. In an April 2013 statement he indicated that he could not do any type of employment, even sedentary, as he could not focus due to the morphine he had to take for his service-connected disabilities, and also had balance and dexterity problems. Therefore, he maintained that he is entitled to a TDIU. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Applicable Law and Regulations When the Veteran's schedular rating is less than total, a total rating may nonetheless be assigned provided that 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. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. VA adjudication manual, M-21-1MR, Part IV, sub. ii, Ch. 2, Sec. F, 24(d). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one, that is, one that is based upon the Veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); VAOPGCPREC 75-91. Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 C.F.R. § 3.341(a), 4.19 (2012). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, 38 C.F.R. § 4.16 is for consideration. 38 C.F.R. § 4.18. The Factual Background The Veteran has a combined rating of 70 percent due to the following service-connected disabilities: degenerative joint disease of the lumbosacral spine, evaluated as 40 percent disabling; folliculitis, evaluated as 30 percent disabling; the residuals of surgery to repair a torn right medial meniscus, evaluated as 20 percent disabling; and right knee arthritis, evaluated as 10 percent disabling. Such ratings meet the rating criteria set forth in 38 C.F.R. § 4.16(a). However, that does not end the inquiry. The evidence must show that those disabilities prevent the Veteran from securing or following a substantially gainful occupation. The evidence of record, such as VA Form 21-8940, received by the RO in June 2006, shows that the Veteran has two years of college education in business studies and work experience in the construction industry, including as a superintendant. He reported that he had last worked in March 2004 as a construction superintendant and that he had been unable to work since that time due to knee, back, and skin disorders. It also was mentioned on a January 2013 VA report that the Veteran last worked as a furniture refinisher in December 2004. In November 2005, the Veteran's wife reported that he was unable to work due to his right knee and back disorders. A psychiatric review of the Veteran from March 2006 to October 2007 was performed in conjunction with the Veteran's claim for Social Security benefits. It was noted that he could fix a simple meal for himself, perform household chores with his son, help with laundry, drive, shop, run errands outside the home, read and write and comprehend what he read, and handle his financial matters. It was noted that his activities were limited by his medical problems (back pain). In April 2006, the Veteran was placed on Morphine, primarily for his low back pain. VA treatment records dated since that time, show that the Veteran has been advised that his health care providers may need to inform the state department of motor vehicles that the Veteran was taking regular narcotic medication so that it could make a determination on his driver's license status. To date, there is no evidence that any VA examiner has, in fact, notified the state department of motor vehicles that the Veteran was taking narcotic medication or that it in any way affected his driver's license status. During VA chiropractic care from April 2006 to September 2007, the Veteran was treated, primarily, for his back disorder. The chiropractor stated that the Veteran's back disorder limited his activities and, on occasion, such as in April 2006 and April 2007, the chiropractor recommended that the Veteran not work but stay at home and rest. In April 2007, it was noted that the Veteran ambulated with the aid of a cane. In July 2006, a former employer stated that from January to December 1996, the Veteran had worked as a drywall lead man. Thereafter, he was laid off and following an automobile accident was no longer able to work. The former employer stated that he had no associated records available. However, on his May 2006 VA Form 21-8940, the Veteran reported that he had returned to work in the construction industry from March 1999 to March 2004 for that firm as well as a different firm. In March 2007, the RO granted the Veteran's claim of entitlement to a permanent and total disability rating for pension purposes due to degenerative disc disease and degenerative joint disease of the lumbar spine; a bilateral knee disorder; hypertension; diabetes mellitus, type II; and neuropathy associated with his back condition. In May 2007, the Veteran's VA chiropractor noted that he had been treating the Veteran since April 2006 for chronic low back and knee pain. He also noted that the Veteran had a loss of strength in the lower extremities causing him instability and an inability to walk. The VA chiropractor opined that the Veteran likely suffered from a permanent condition of the low back and legs which would limit his employability, if at all. During VA treatment in September 2007 and May 2008, it was noted that the Veteran had a 3 hour drive, roundtrip, between his home and the Salisbury VAMC. In September 2007, the Veteran underwent a Disability Determination Examination for the Social Security Administration. He reported that he had been out of work for 4 years but prior to that had been employed in construction as a working superintendant putting up metal studs and drywall. He stated that he was able to sit for only 5 or 10 minutes but discussed his case, while sitting, with the examiner for 20 minutes. He also reported being unable to stand for more than 5 or 10 minutes. He claimed that he could walk 30 yards and negotiate 1/4 flight of stairs. He stated that he was no longer able to work, even as a supervisor. During a Physical Residual Functional Capacity Assessment the previous month, the Veteran complained of fractured vertebrae, diabetes, nerve damage, neuropathy, arthritis, high blood pressure, high cholesterol, and vision problems. The examiner opined that the Veteran was occasionally able to lift or carry 50 pounds and that he was able to frequently lift or carry 25 pounds. He was reportedly able to stand and/or walk (with normal breaks) for a total of about 6 hours during an 8 hour work day. He was reportedly able to sit (with normal breaks) for a total of about 2 hours during an 8 hour work day. He was found to have an unlimited ability to push or pull (including operation of hand and/or foot controls), other than as shown for his ability to lift or carry. The examiner stated that the Veteran had frequent postural limitations involving climbing, balancing, stooping, crouching, and crawling, and occasional postural limitations kneeling. The Veteran reportedly had no manipulative limitations. In October 2007, the Social Security Administration denied the Veteran's claim for benefits, finding that the Veteran was not disabled for work. In a Disability Report associated with his appeal of the October 2007 Social Security Administration decision, the Veteran reported that he had been having short-term memory problems associated with his pain medication. During a VA pain assessments from April to June 2008, the Veteran sought renewal of his prescription for Morphine. It was noted that he was not having any side effects from the medication. He agreed to avoid operating a motor vehicle or other dangerous machinery while taking the medication. He further understood that the prescribing physician could contact the Department of Motor Vehicles and inform it that the Veteran was taking narcotic medication. Thereafter, the Department of Motor Vehicles could make a determination of the status of the Veteran's driver's license. During an April 2008 VA examination of the Veteran's joints, it was noted that the Veteran had a fractured right lateral patellar facet (excision of a depressed fragment of the right patella); right medial meniscus tear (post-repair); and residual bipartite patella, pain, scars, and degenerative changes. It was also noted that he was then unemployed but that in his prior construction job, his right knee disorder had caused pain on the job, prevented him from picking things up, caused difficulty with squatting, and resulted in decreased mobility. His right knee disability had reportedly caused him to be irritable and to be late for work or to miss work altogether. It also reportedly took him longer to perform activities of daily living and prevented his participation in sports and recreation. It also had a severe impact on his ability to perform chores, exercise, and drive or travel, as well as a moderated impact on his ability to shop or bathe. During treatment by D. F. M., M.D., in February 2009, it was noted that the Veteran had received two injections of pain medication into his back. In March 2009, the Veteran was examined by VA to determine the extent of impairment attributable to his service-connected skin disorder, characterized as folliculitis. Following the examination, the examiner stated that folliculitis was not found and that the Veteran's skin disorder was more properly diagnosed as prurigo nodularis and atopic dermatitis. The examiner noted that the atopic dermatitis affected the Veteran's arms, legs, abdomen, back, and neck. The lesions reportedly itched and the Veteran scratched them to the point that the otherwise benign lesions became infected and progressed to prurigo nodularis. The examiner offered no opinion as to any impact on the Veteran's employment or performance of his daily activities. In August 2009, the Social Security Administration granted the Veteran's claim of entitlement to disability benefits. The primary diagnosis was a back disorder, while the secondary diagnosis was a disorder of the muscle and connective tissue. It was noted that the disability had begun on March 1, 2006. During a Residual Physical Capacity Functioning Assessment earlier in August 2009, the primary diagnosis was degenerative joint disease of the lumbar spine. The secondary diagnosis was degenerative joint disease of the right knee. The examiner opined that the Veteran was occasionally able to lift or carry 10 pounds and that he was able to frequently lift or carry less than 10 pounds. He was reportedly able to stand and/or walk (with normal breaks) for a total of about 2 hours during an 8 hour work day. He was reportedly able to sit (with normal breaks) for a total of about 6 hours during an 8 hour work day. He was found to have an unlimited ability to push or pull (including operation of hand and/or foot controls), other than as shown for his ability to lift or carry. The examiner stated that the Veteran had frequent postural limitations involving climbing, balancing, stooping, crouching, and crawling, and occasional postural limitations kneeling. The Veteran reportedly had no postural or manipulative limitations. The examiner concluded that the Veteran's restrictions would preclude substantially gainful activity. During an April 2010 VA examination, the Veteran reported low back pain which radiated to his right lower extremity causing weakness. He stated that he took morphine and had had injections but that such medication had not helped. He reported that he had no side effects from the morphine. He also stated that the pain was made worse by prolonged sitting. He noted that he could stand for 2 to 4 minutes and that he could walk for 20 yards. He reported that he used a cane for ambulation and had done so for a period of 7 to 8 years. He stated that 8 years earlier, he had done construction work and had experienced difficulty with the required amount of walking, standing, and negotiating stairs. Following the examination, the diagnosis was lumbar degenerative disc disease. The examiner did not offer an opinion as to the impact of that disorder on the Veteran's ability to work or perform his usual daily activities. In April 2011, following an additional review of the record, the April 2010 VA examiner opined that the Veteran would be incapable of physical labor, due to his back and right knee disorders. However, he further stated that the Veteran would be capable of sedentary employment, provided that he was given the proper ergonomic modifications. In April 2012, the Veteran was reexamined by VA, to determine the impact of his service-connected disorders on his ability to obtain or retain employment consistent with his education and work experience. Following the examination, the VA examiner opined that the Veteran's service-connected right knee and lumbar spine conditions would preclude physical employment but that his service-connected skin condition would not. The VA examiner further opined that none of the Veteran's service-connected conditions would preclude all potential sedentary employment. The examiner acknowledged that the opiates which the Veteran took for pain could impair some functions but more so if the Veteran was beginning to take such medication. The VA examiner noted that the Veteran had been taking opiates for a long time and that the Veteran was aware of his surroundings and was able to drive. In February 2013, the April 2012 VA examiner reviewed the Veteran's claims file. He reported that the Veteran had a high school education and multiple manual labor type jobs, such as carpentry. He noted that the Veteran had last worked in December 2004 as a furniture refinisher and that he had had problems early on due to his right knee and back problems. The VA examiner further noted that the Veteran was receiving Social Security benefits but that there was nothing in the Social Security records to show that his ability to work in a sedentary capacity was prevented by his service-connected conditions. The examiner noted that on one Social Security form, the Veteran reported that his prescription for morphine caused no problems, except for some drowsiness. Analysis After reviewing the record, the Board finds that the Veteran's service-connected right knee and back disorders preclude his ability to obtain or retain physical employment. However, that is not to say that his service-connected disabilities, by themselves, prevent him from securing or following other types of substantially gainful occupations. While it was noted in an August 2009 Residual Physical Capacity Functioning Assessment that the restrictions caused by the Veteran's back and knee disabilities would preclude substantially gainful employment, as noted by the most recent VA examiners, his service-connected disabilities do not preclude the performance of sedentary employment. It does not appear that the clinician who determined that the Veteran was precluded from substantially gainful employment in August 2009 considered the Veteran's work history in management. The clinician did not provide any rationale for the opinion provided. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the August 2009 opinion with the VA opinions provided in 2011 and 2013, the Board assigns higher probative value to the latter opinions, as the clinicians considered the Veteran's pertinent work history, the severity of his service-connected disabilities, and his educational background in determining his employability status. See Nieves-Rodriguez, 22 Vet. App at 303-04. The Veteran places great weight on the fact that the Social Security Administration has found him disabled for employment on the basis of his low back and right knee disorders. He maintains that he is not capable of even sedentary employment and that the morphine he takes for pain associated with his service-connected disabilities causes him to lose focus and affects his balance and dexterity. While a finding of unemployability by the Social Security Administration is relevant evidence which needs to be weighed and evaluated, it is not dispositive of the issue. Indeed, the Social Security Administration and VA each have their own governing law and regulations to consider in making such a determination. Therefore, a finding of unemployability by the Social Security Administration is not binding on the VA. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). Although the Social Security Administration has found that the Veteran's service-connected right knee and back disorders preclude him from obtaining or retaining physical employment, there is nothing in the Veteran's Social Security records to suggest that those disorders, or the narcotic pain medication which he takes for those disorders, preclude him from finding or maintaining sedentary employment. Indeed, his VA treatment records show that he has been taking narcotic pain medication for many years and that he does not have any significant side effects from that medication, other than drowsiness. The Social Security records show that he is able to stand and/or walk (with normal breaks) for a total of about 2 hours during an 8 hour work day and that he is able to sit (with normal breaks) for a total of about 6 hours during an 8 hour work day. Moreover, he has access to transportation, often driving the 11/2 hours from his home to the VAMC. In addition, the Veteran reports that he has supervisory experience and two years of college education in business. The combination of the Social Security findings, the Veteran's leadership skills, and his more advanced education strongly suggest that he is capable of sedentary employment. The Veteran genuinely believes that he is unemployable due to his service-connected disabilities. His factual recitation as to impairment he suffers as a result of his service-connected disabilities is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as his employability status and his views are of limited probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the detailed opinions provided by the medical professionals who discussed the details of all of the Veteran's service-connected disabilities and determined his employability status on the basis of his education and work history. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although the Veteran vehemently maintains that his service-connected disabilities render him unemployable, the Board finds that the preponderance of the competent evidence of record against such a finding. Accordingly, he does not meet the criteria for a TDIU. To the extent his service-connected disabilities affect his employment, the assigned schedular ratings compensate the Veteran for the associated impairment. Accordingly, a TDIU is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). ORDER Entitlement to a TDIU is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs