Citation Nr: 1323902 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-26 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 11, 2009, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim for a TDIU. The Veteran's claims file was subsequently transferred to the RO in Columbia, South Carolina. In December 2009, the Veteran testified before the Board at a travel board hearing. A transcript of the hearing has been associated with the claims file. The Board remanded the claim for a TDIU in January 2010 for additional development. In June 2012, the Board granted entitlement to a TDIU, effective December 11, 2009, and remanded the claim for a TDIU prior to December 11, 2009, for additional development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. Prior to December 11, 2009, the Veteran's service-connected disabilities combined to a 40 percent rating, effective July 23, 2003, and to a 50 percent rating, effective December 22, 2006. 2. The Veteran has work experience in masonry and construction, as a security guard, and as a truck driver; he has a high school education. 3. The weight of the competent and probative evidence indicates that prior to December 11, 2009, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW Prior to December 11, 2009, the criteria for a TDIU were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an April 2005 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim a TDIU, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2007 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in December 2012. Although the March 2007 notification was issued after the adjudication on appeal, the Veteran's case was subsequently readjudicated in the May 2007 statement of the case and the April 2008, January 2012, and December 2012 supplemental statements of the case, and he had the opportunity to submit additional argument and evidence. Therefore, the content timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, an opinion from the Director of Compensation and Pension Service (C&P), private treatment records, lay evidence, and hearing testimony. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for a TDIU. The VLJ also sought to identify any pertinent evidence not currently associated with the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining an extraschedular TDIU opinion from the Director of C&P. In response, the RO/AMC obtained an October 2012 extraschedular TDIU opinion from the Director of C&P. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including hearing testimony. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When a veteran does not meet the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a), rating boards are still required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) "in the first instance" and must first refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). An assessment for extra-schedular referral requires consideration of the veteran's service-connected disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b) (2012). The veteran's age and effects of non-service connected disability, however, are not factors for consideration. 38 C.F.R. §§ 3.341(a), 4.19. For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a 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 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Prior to December 11, 2009, the Veteran was service-connected for a low back disorder (40 percent), sciatica of the left sciatic nerve (10 percent), gamekeeper's thumb (10 percent), and left hernia repair residual scar (0 percent). Combined, the Veteran's service-connected disabilities were ratable at 40 percent, effective July 23, 2003, and at 50 percent, effective December 22, 2006. Thus, the Veteran did not meet the threshold disability percentage requirements of 38 C.F.R. § 4.16(a) prior to December 11, 2009. The Veteran completed 4 years of a high school education. At his December 2009 travel board hearing, he testified that after his discharge from service, he had tried to work in the masonry and construction fields, but had been unable to do that work. He had also worked in a security position for 3 1/2 years, but had been forced to quit because he had been unable to perform the required monthly physical fitness test due to his back and leg pain. He last worked in May 2002 as a truck driver. Post-service VA and and private medical records dated from July 2003 to August 2009 show that the Veteran received intermittent treatment for his low back disorder and sciatica of the left sciatic nerve. The Veteran primarily suffered from such symptoms as low back pain that radiated into the bilateral lower extremities and numbness in the left lower leg. The Veteran submitted lay statements dated in February 2005 from his family in support of his claim. These statements indicate, in pertinent part, that the Veteran suffered from constant back pain and numbness in the leg that caused him to toss and turn at night. He was noted to have been unable to work in construction due to pain in his leg that radiated up his hip and enhanced his limp. When walking short distances and on the stairs, his leg would give out and throw him off balance. He had difficulty getting up out of bed or from a chair, and he was unable to drive at times due to leg and back pain. The Veteran's thumb was also reported to swell and ache, preventing him from gripping many things with his left hand. On VA neurological disorders examination in April 2007, the Veteran complained of low back pain radiating into the left hip and leg. He reported being unable to stand or walk and stated that his left leg was becoming weaker as the years passed. However, upon examination, the examiner found no evidence of any neuropathy involving the sciatic nerve or any evidence of radiculopathy. The examiner also determined that there was no residual loss of motion of the Veteran's thumb. At a July 2007 VA peripheral nerves examination, the Veteran indicated that he had low back pain radiating into the left leg, but did not have any complaints suggesting peripheral neuropathy. Upon examination, the examiner found no evidence of a peripheral neuropathy. He explained that the Veteran's complaints were consistent with lumbago, and there was no evidence of a radiculopathy. On VA hand, thumb, and fingers examination in July 2007, the Veteran complained of daily pain in his left thumb. He reported that when he worked as a truck driver, he had a poor grip on the steering wheel with his left hand. However, he did not feel that his left thumb interfered with his activities of daily living. Examination revealed that the Veteran had minimal range of motion at the metacarpalphalangeal joint of the left thumb and no motion at the interphalangeal joint. He was tender to palpation over the metacarpalphalangeal joint and had marked hypermobility in all directions. The Veteran could passively move his thumb at the metacarpalphalangeal joint through a complete arc. He could also weakly appose his thumb to his index and long fingers, but he could not appose his thumb to his fourth and fifth fingertips. The examiner diagnosed the Veteran with gamekeeper's thumb and found that he could not participate in any way in gripping action, nor could he make a full fist. A private treatment report from the Veteran's private Doctor of Chiropractic (D.C.) dated in December 2009 indicated that the Veteran stopped working in 2002. After recording a history provided by the Veteran and performing a physical examination, the D.C. diagnosed the Veteran with displacement of intervertebral disc; disc disorder (lumbar region); difficulty walking, gait; sciatica; disorder of sacrum; coccygodynia; and spinal stenosis. The D.C. stated that in his professional opinion, coupled with his experience with this type of case, the Veteran would be unable to perform strenuous work, indefinitely. The Board obtained an October 2012 extraschedular TDIU opinion from the Director of C&P. The Director thoroughly reviewed the Veteran's claims file and noted that the Veteran's service-connected disabilities prior to December 11, 2009 had a combined rating of 50 percent. He also noted that the RO had submitted requests for VA examinations in September 2005 and April 2007 to evaluate the impact of the Veteran's service-connected disabilities on his ability to perform physical and sedentary employment. The Veteran had also been asked to complete and submit a VA Form 8940. The Director found that the April 2007 VA neurological examination had not provided any clinical findings of significant impairments due to the Veteran's service-connected conditions. He noted that the Veteran had also failed to report to a number of examinations and had not completed and submitted a VA Form 8940. The Director further cited the December 2009 independent medical evaluation in which the examiner had opined that the Veteran was unable to perform strenuous work, indefinitely. The Director explained that the December 2009 opinion had only addressed the Veteran's inability to perform strenuous work and had not discussed his ability to perform a sedentary occupation. Based on the evidence of record, the Director found that it would not be unreasonable to conclude that the Veteran had been capable of performing a non-strenuous or sedentary occupation prior to December 11, 2009. He concluded that the record presented no evidence that the Veteran's service-connected disabilities had rendered him unable to secure and follow any substantially gainful occupation prior to December 11, 2009. Based on the foregoing evidence, the Board finds that the Veteran's service-connected disabilities did not prevent him from obtaining and maintaining substantially gainful employment prior to December 11, 2009. The Board acknowledges the Veteran's assertion that he was unemployable prior to December 11, 2009. However, in April 2007, a VA examiner found no evidence of any neuropathy involving the sciatic nerve or any evidence of radiculopathy. The examiner also determined that there was no residual loss of motion of the Veteran's thumb. In July 2007, a VA examiner found no evidence of a peripheral neuropathy or radiculopathy. Another July 2007 VA examiner found that the Veteran could not participate in any way in gripping action, nor could he make a full fist, but the examiner did not determine that this rendered the Veteran unemployable. Finally, an October 2012 opinion from the Director of C&P indicated that although a December 2009 private opinion found the Veteran to be unable to perform strenuous work, indefinitely, there was no evidence that the Veteran had been incapable of performing a non-strenuous or sedentary occupation prior to December 11, 2009. The competent and probative medical opinion in the record indicates the Veteran's service-connected disabilities did not prevent gainful employment prior to December 11, 2009. Indeed, there is no evidence that the Veteran's service-connected disabilities prevented him from obtaining and maintaining non-strenuous or sedentary occupations prior to December 11, 2009. The Board places greater probative weight on the medical opinions concerning the Veteran's employment capability than the Veteran's lay contentions as to the limitations caused by his disabilities. Again, the issue is not whether the Veteran is unemployed or has difficulty finding employment, but rather, whether the Veteran is capable of performing acts required by employment. See Van Hoose, 4 Vet. App. at 363. While the Board is cognizant that the Veteran would have had difficulty working due to the physical restrictions related to his back, sciatica, and left thumb, the preponderance of the evidence of record demonstrates that the Veteran was not precluded from securing and following substantially gainful non-strenuous or sedentary employment due to his service-connected disabilities prior to December 11, 2009. In summary, the evidence shows that prior to December 11, 2009, the Veteran had difficulty working due to his service-connected disabilities. However, the April 2007 and July 2007 VA examinations, the December 2009 private opinion, and the October 2012 opinion from the Director of C&P, the most probative and complete medical evidence, reflect that the Veteran's service-connected disabilities did not preclude him from obtaining non-strenuous or sedentary employment. Accordingly, the Board finds, based on the preponderance of the evidence of record, that prior to December 11, 2009, the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment consistent with his education, and the Veteran's claim for TDIU is denied for the period under consideration. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU prior to December 11, 2009 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs