Citation Nr: 1324548 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 04-20 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The appellant served on active duty from January 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). Procedural History As will be explained herein, the Veteran's TDIU claim arises from an increased rating claim for his chronic low back strain. In September 1996, the appellant filed a claim for a compensable disability rating for his chronic low back strain. A September 1997 rating decision, in pertinent part, increased the appellant's chronic low back strain disability rating to 10 percent, effective September 24, 1996 [the date of the appellant's claim]. In August 1998, a Decision Review Officer (DRO) held a hearing. In August 1998, the appellant submitted a Notice of Disagreement (NOD) with the 10 percent disability rating. In an April 1999 Statement of the Case (SOC), the RO increased the appellant's chronic low back strain to a 20 disability rating, effective from the date of the appellant's claim. In May 1999, the appellant perfected his appeal. In December 1999, the Board remanded the issue of entitlement to an increased disability rating in excess of 20 percent for chronic low back strain. A June 2000 Supplemental SOC (SSOC) continued the appellant's 20 percent disability rating. A December 2002 rating decision continued the previously assigned disability rating of 20 percent for chronic low back strain. In January 2004, the appellant submitted an untimely NOD with this decision; however the issue of entitlement to an increased disability rating for chronic low back strain was already in appellate status. In February 2007, the increased rating claim came before the Board and was remanded for further development. In July 2010, the Board denied an increased rating for the chronic low back strain and also granted a separate disability rating for the left lower extremity as part of the low back disability [the Agency of Original Jurisdiction (AOJ) implemented that grant in an August 2010 rating decision]. The Board noted that under Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam), the issue of entitlement to a TDIU rating was raised in connection with a claim for an increased rating for such disability or disabilities and that the Board has jurisdiction to consider that issue. As such, the Board remanded the Veteran's TDIU claim for further development. In July 2011 and March 2013, the Board remanded the TDIU claim for additional development. As noted in a May 2013 SSOC, a May 2013 memorandum from Compensation and Pension Service denied TDIU on an extra-schedular basis, under 38 C.F.R. § 4.16(b). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless 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. The Veteran does not meet the minimum percentage requirements for consideration of a TDIU rating as set forth under 38 C.F.R. § 4.16(a), as service connection is in effect for a low back strain (with a 20 percent disability rating effective September 24, 1996); tinnitus (with a 10 percent disability rating effective June 18, 1998); left lower extremity neurological manifestations associated with low back strain (with a 10 percent disability rating effective September 23, 2002); and a healed left tympanic membrane perforation with residual scar and hearing loss (noncompensable). The Veteran has a combined rating of 40 percent. 2. The Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for the establishment of TDIU due to service-connected disabilities, on a schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a) (2012). 2. The criteria for the establishment of TDIU due to service-connected disabilities, on an extraschedular basis, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this case, the Board is granting in full the TDIU benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Factual Background The medical evidence of record has variously documented reports of unemployability and functional limitations. A September 1996 VA biopsychosocial summary for treatment for alcohol and cocaine dependence documented the Veteran's report that he received a GED in 1968 and has worked as a tractor trailer drive (15 days the prior month). He planned to return to driving tractor trailers following his treatment. A May 1997 VA examination report documents that the Veteran reported that he had injured his back when he fell of the back of a truck in Germany and landed on his back. He also reported that he currently worked at "Labor World" as a truck driver, for about 30 hours per week (the last two months). He complained of back pain, including with lifting heavy objects. During an October 1997 VA examination, the Veteran reported that he had worked for the past thirty years as a truck driver and had last worked on a temporary basis approximately a month previously. He claimed that no one would hire him because of his back discomfort and use of a back brace. During his August 1998 RO hearing, the Veteran reported that no big company would hire him due to his back brace and pain. He also reported that he was currently working driving a dump truck for a construction company. During an April 2000 VA examination, the Veteran reported that he worked part time driving a dump truck, that his job did not involve lifting and that driving worsened his own pain. A January 2002 VA social work assessment documented a report of full time work. A June 2002 VA examination documented the Veteran's report that he could not obtain full-time employment due to his back pain, but that he occasionally did part-time driving. That examiner found that the Veteran should avoid bending and lifting. A November 2002 VA medical record documents a report of current unemployment, but that the Veteran had recently worked as a trucker for a construction company. Similarly, a June 2003 VA medical record documents that the Veteran reported that he was doing construction work prior to a June 2003 injury to his ankle. A May 2004 VA medical record documents that the Veteran was released from a substance abuse treatment program so that he could return home for a new job. A December 2004 VA medical record documents that the Veteran had complete 12 years of education and two months of technical training. The examiner noted that the Veteran did not have a valid driver's license and that his longest full time job was six years; his usual occupation was a truck driver. The examiner noted that the Veteran's employment pattern for the past three years had been part time. A March 2007 VA medical record documented a report of increased back pain. An April 2007 VA discharge record noted that the Veteran was currently unemployed, though he had worked recently as a truck driver. A May 2008 VA examination report documented a report of working "on and off" since 1968 as a truck driver, with extended periods of unemployment and homelessness. The Veteran attended a rehabilitation program and worked part time in the kitchen. During an October 2009 VA examination, the Veteran reported that he could perform activities of daily living, as long as he did not strain his lumbar spine. The Veteran reported that he had not worked as a trucker since 1995. The examiner found that the Veteran's severe pain was prostrating, but that with his lesser pain he was capable of activities of daily living. A May 2011 VA examiner found the Veteran's low spine to cause moderate functional impairment as a result of subjective complaints. The examiner noted that the Veteran was unemployed on Social Security disability and remained independent in his activities of daily living. A September 2011 VA examiner found that the Veteran's degenerative disc disease with sciatica caused moderate functional impairment with no incapacitating events. However, the examiner opined that the Veteran would be unable to work as a truck driver with chronic low back pain, which is worse with sitting for long periods of time or increased activity. Also, the examiner noted that the Veteran had no other skills or training, and was considered unemployable on Social Security disability. The examiner further found that bilateral hearing loss and tinnitus did not impact employability. The examiner noted that non-service-connected asthma also caused mild/moderate functional impairment and the Veteran also had non-service-connected recurrent prostate cancer. The September 2011 VA examiner provided a January 2012 addendum opinion. The VA examiner found that due to the lumbar degenerative disc disease with sciatica, the Veteran would be unable to perform a physical job because activity would increase symptoms, as would repetitive activities and heavy lifting. The examiner further found that the Veteran would be unable to perform a sedentary job because of increased symptoms after sitting for more than 30 minutes, requiring frequent change of position. The examiner also noted that tinnitus and the healed perforated tympanic membrane and hearing loss would not affect employability. The September 2011 VA examiner also provided a May 2012 addendum opinion. The examiner found that the Veteran had chronic low back pain with sciatica. The examiner found that despite the spine's normal range of motion, the Veteran had pain with movement, as well as repetitive activities and heavy lifting, which would prevent him from performing a physical job. She also noted that the Veteran also had pain after sitting for more than 30 minutes and required frequent changes of position, which would make a sedentary job difficulty. She further noted that the Veteran was on Social Security disability and remained independent in his activities of daily living. An undated Social Security work history report documents that the Veteran's previous work history included work in demolition, trucking and as a security guard. Analysis The Veteran is currently service-connected for a low back strain (with a 20 percent disability rating effective September 24, 1996); tinnitus (with a 10 percent disability rating effective June 18, 1998); left lower extremity neurological manifestations associated with low back strain (with a 10 percent disability rating effective September 23, 2002); and a healed left tympanic membrane perforation with residual scar and hearing loss (noncompensable). A Veteran will be entitled to a TDIU upon establishing that he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total disability rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, even if the ratings for a Veteran's disabilities fail to meet the first two objective bases upon which a permanent and total disability rating for compensation purposes may be established, the Veteran's disabilities may be considered under subjective criteria. If the Veteran is unemployable by reason of his disabilities, occupational background, and other related factors, an extraschedular total rating may also be assigned on the basis of a showing of unemployability, alone. See 38 C.F.R. § 4.16(b). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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 the Veteran actually works and without regard to the Veteran's earned annual income ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted that it was clear that "a claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity." The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. Given the Veteran's ratings for his service-connected disabilities (with his highest rating being 20 percent for his service-connected low back strain and his total combined rating of 40 percent), the Veteran does not meet the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a). Thus, a TDIU rating is not warranted under the provisions of 38 C.F.R. § 4.16(a). Turning to whether entitlement to a TDIU rating on an extra-schedular basis is warranted under the provisions of 38 C.F.R. § 4.16(b), the record shows varying evidence of the extent of the Veteran's ability to work and periods of employment over the course of the appeal. However, the only medical evidence to directly address the question of the Veteran's employability is the opinions of the September 2011 VA examiner (who also provided January 2012 and May 2012 addendum opinions). The September 2011 VA examiner found that despite the Veteran's normal range of motion for the lumbar spine, he had pain with movement, repetitive activities and heavy lifting. She found that such symptoms would prevent him from performing a physical job. She also noted that the Veteran had pain after sitting for more than 30 minutes and required frequent change of position, which would make a sedentary job difficulty. The Board notes that the highest educational level obtained by the Veteran is a high school education. Additionally, his previous work experience was in physical labor positions, including truck driving and demolition. The September 2011 VA examiner effectively finds that the Veteran would be unable to perform such physical labor. Based on a review of the relevant evidence discussed above and giving the benefit of the doubt to the Veteran, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities, specifically his lumbar spine disability. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit-of-the-doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As such, the Board finds that entitlement to TDIU is warranted on an extraschedular basis. ORDER Entitlement to a TDIU is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs