Citation Nr: 1325503 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-09 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to total disability based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Rhode Island Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to January 1988 and from August 1989 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied entitlement to a rating in excess of 40 percent for status post discectomy L4/5 with right L4, L5/S1 radiculopathy. The Court has held that a request for a total disability evaluation based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board found the Veteran raised the issue of TDIU in a March 2013 remand. In June 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is in the claims file. This appeal was previously before the Board in March 2011. The Board remanded the claim for further development. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran is service connected for status post discectomy L4-5 with right L4, L5-S1 radiculopathy, rated as 40 percent disabling; tender painful car associated with status post discectomy rated as noncompensable; and, tendonitis of the right arm, rated as noncompensable. The combined total rating is 40 percent. 2. The Veteran does not meet the schedular criteria for a TDIU. 3. The evidence of record weighs against finding that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of her service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in April 2011 discussed the evidence necessary to support a claim for TDIU. The evidence of record was discussed and the Veteran was told how VA would assist her in obtaining additional pertinent evidence. This letter also discussed the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Board notes that there may be outstanding treatment records. However, in a letter of April 2011 the RO requested that the Veteran provide the names and dates of treatment of all VA and non-VA treating physicians so that the RO could obtain any outstanding relevant records. The Veteran was informed that she could submit any outstanding relevant treatment records she may have. The Veteran did not reply to the letter. The Veteran underwent VA examinations in August 2008 and December 2011 to determine the severity of her spine disorder. Unfortunately, the Veteran failed to appear for VA examinations dated in August and September 2012. Another VA examination was scheduled in compliance with the February 2013 Board remand in order to address the issue of unemployability. The Veteran was notified in April 2013 that a VA examination would be scheduled for her and that failure to appear for the VA examination would result in a rating based on the evidence of record or even denial of the claim. The Veteran cancelled a VA examination dated in April 2013 and the examination was rescheduled for May 2013. In May 2013, the Veteran contacted the VAMC and requested the appointment be moved to a later time. The appointment was again rescheduled for later that afternoon. The Veteran failed to report for the rescheduled VA examination. A May 2013 supplemental statement of the case, readjudicated the issue based on all evidence in the claims file. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). As the RO scheduled the Veteran for VA examinations on two separate occasions, and the Veteran gave no reason for her failure to appear at the rescheduled examinations, the Board finds that VA has fulfilled its duty to assist. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background The Veteran asserts she is unemployable due to her service-connected status post discectomy L4/5 with right L4, L5/S1 radiculopathy. In November and December 2003 VA progress notes, the examiners noted that the Veteran has a well-documented history of bipolar type one disorder. She reported she is not able to function in her occupation as a nurse and recently terminated employment due to severe anxiety and depression. The Veteran was afforded a VA examination in October 2006. At the time, she reported radiating pain from her back down her right ankle which is constant and associated with stiffness of her lower back. Physical examination revealed she had normal gait and used no assistive devices. There was no pain with range of motion but she did report stiffness. She reported she could not do any recreational sports and is able to sit only for a half hour. She also reported being unable to work since 1991 due to her spine. She denied any flare-ups or hospitalizations. A May 2006 MRI report included a diagnosis of lumbar spondylosis. Current x-ray testing showed progressive disease at L2-L3 and L4-L5 compared to the study of 1998. On VA examination of August 2008, the Veteran reported she last worked in 2003 and stopped due to her back. She reported pain in the lower back with numbness in the right anterior thigh. The pain is precipitated by sitting for more than 15 minutes, lifting more than 10 pounds, and bending and twisting motions. She has pain on most days and the pain is unpredictable. She reported being less active around the house but being able to perform activities of daily living; she does not do any yard work and does not engage in recreational activities. She reported that four to five times a month she will have severe pain that will leave her incapacitated for one to five days at a time. The examiner found that the Veteran's pain would not affect her ability to perform work in the sedentary position, but would preclude her from a job requiring manual labor. In June 2009, the Veteran testified at a videoconference hearing. She asserted that she retired due to her back disability and her mobility is affected. She claimed she cannot sit or stand for any long periods of time, do any heavy lifting or twisting, or cannot hold any position for any long period of time. She reported her sleep has been affected. She further testified that she had chronic pain with flare-ups that have lasted up to several months and where she has needed to call her primary physician. She reported that at these times she can tolerate the pain during the day and she tries to get in comfortable positions. However, she often cannot and what really gets affected is her ability to sleep at night. She described her pain as severe. She also testified that her back disability has rendered her unemployable. Her pain is generally a four out of ten and during flare ups goes to eight out of ten. She further testified that bedrest was suggested six months before, but had not been medically prescribed. On VA examination of December 2011, the Veteran reported that she has flare-ups which occasionally impact her function. There was functional loss of weakened movement, excess fatigability, incoordination and pain on movement. It was noted the Veteran had incapacitating episodes over the last 12 months lasting less than a week. She does not use any assistive devices. The Veteran reported not having worked for the previous 6 years. The examiner opined that the Veteran had a service connected injury which rendered her unable to secure and maintain substantially gainful employment. The Veteran was scheduled for additional VA examinations in April and May 2013 for evaluation of her ability to work, but she did not show up for the examinations. In an August 2012 opinion from the Director of Compensation and Pension Services for extraschedular consideration under 38 C.F.R. § 4.16 (b), the Director noted that service connection is in effect for status post discectomy L4-5 with right L4, L5-S1 radiculopathy, rated as 40 percent disabling; tender painful car associated with status post discectomy rated as noncompensable; and, tendonitis of the right arm, rated as noncompensable. He noted that a review of the records showed the Veteran has not been gainfully employed since 2006. The Veteran has not worked for the past 6 years and last worked as a nurse. She has not applied for Social Security Administration disability benefits. He noted the findings of the August 2008 and December 2011 VA examinations. The examiner noted that private treatment records of March 2009 indicate that the Veteran has two Master degrees, and records of August 2006 indicate she retired as a registered nurse. He further noted that the evidence did not show any emergency room visits, surgical procedures or hospitalizations for the lumbar spine and radiculopathy. He also noted that there is no objective evidence from previous employers demonstrating that the Veteran's service connected disabilities caused interference with her previous employment, as she is a retired nurse with two Master degrees. The Director stated that he had reviewed the file to determine if the Veteran was entitled to an extra-schedular evaluation for any of her service connected disabilities and the same was not established. He noted the evidence showed the Veteran was diagnosed with several medical conditions not related to service including bipolar disorder and depression, and lateral epicondylitis of the left elbow. He also noted that there was no unusual or exceptional disability pattern demonstrated that would render the application of the regular rating criteria as impractical. He found the evidentiary record does not demonstrate that the symptomatology consistently associated with the service connected conditions is not wholly contemplated by the criteria utilized to assign the current and past evaluations. He also concluded that an extra-schedular evaluation for any of the Veteran's service connected disabilities was not established. He finally opined that the VA medical opinion is not consistent with the findings on the examination and that entitlement to TDIU on an extra-schedular basis is not established. Legal Criteria and Analysis VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability 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. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. 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 or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board notes that the Veteran is service connected for status post discectomy L4-5 with right L4, L5-S1 radiculopathy, rated as 40 percent disabling; tender painful car associated with status post discectomy rated as noncompensable; and, tendonitis of the right arm, rated as noncompensable. As such, her combined rating is 40 percent. Therefore, her service-connected disabilities do not meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a). The RO considered whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. An August 2012 opinion from the Director of Compensation and Pension services opined that the VA December 2011 medical opinion is not consistent with the findings on the examination and that entitlement to TDIU on an extra-schedular basis is not established. Here, the Board has also considered with extraschedular evaluation is warranted, and finds that it is not. In this case, the Veteran asserts that she is unable to work because of the severity of her service-connected back disability. However, having reviewed the record, the Board finds that the preponderance of the evidence weighs against finding that she is unable to secure or maintain substantially gainful employment due to her service-connected disabilities. In this case, the Board ultimately places more weight on the August 2008 VA examination opinion regarding whether the Veteran is unemployable due solely to service-connected conditions. The Board recognizes the positive opinion of the December 2011 VA examiner that the Veteran is unemployable due to her service-connected back disorder. However, the Board finds this opinion is less probative than the August 2008 VA examination report. The December 2011 VA examiner did not support the opinion using any rationale, and there is question whether the claims file was reviewed prior to issuing the opinion. Furthermore, the examiner did not indicate whether the Veteran's non-service connected psychiatric disorders were considered when rendering the opinion. The Board notes that in the December 2011 examination report, the examiner did not mark any box indicating a current psychiatric condition. In contrast, the August 2008 VA examiner reviewed the entire claims file, conducted a physical examination, and considered her assertions before rendering an opinion. The Board finds that the most probative medical evidence of record on the matter is against a finding that the Veteran is unemployable due to her service-connected disabilities so as to warrant entitlement to TDIU on an extraschedular basis. Lay persons can attest to factual matters of which they had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). Here, the Veteran described her limitations caused by her service-connected disabilities, and the Board acknowledges that her statement in that regard is competent and of some probative value. However, the Board also notes that the complexity of her medical history and variety of health problems create some limitation as to her ability to distinguish to what degree those limitations are a result of her service-connected disabilities and to what degree those limitations are attributable to her nonservice-connected medical conditions such as bipolar disorder that also impacts her ability to work. In short, upon review of all relevant evidence of record, the Board finds the August 2008 VA examination report to be the most probative medical evidence of record on the matter. In summary, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on her employability, the weight of the evidence does not support her contention that her service-connected disabilities are of such severity so as to preclude her participation in any form of substantially gainful employment. The Veteran was given multiple opportunities to be examined and participate in the development of her claim for TDIU; however, the Veteran has failed to report for VA examinations to include those scheduled at her convenience. Based on the evidence in the claims file, the Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 40 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: '[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.' See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to total disability based on individual unemployability (TDIU) due to service connected disabilities is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs