Citation Nr: 1327109 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-02 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 7, 2009. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and son ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to March 1978, June 1979 to May 1983, and January 1984 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which initially denied entitlement to TDIU. In March 2011, the Veteran testified at a video-conference hearing before the undersigned Veteran's Law Judge. In January 2012, the Board remanded claims of entitlement to an increased rating for degenerative joint changes of the lumbosacral spine and entitlement to service connection for a cervical spine disorder. The Board noted that in January 2010, March 2010, and June 2010, the Nashville RO denied entitlement to a TDIU. As the Veteran had a pending claim for an increased rating for degenerative joint changes of the lumbosacral spine and asserted that he could not work due to this service-connected disability, a claim for TDIU was considered "part and parcel" of the claim for benefits of the underlying disability; therefore, the issue of entitlement to a TDIU was properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). As the Veteran met the schedular prerequisites for consideration of a TDIU under 38 C.F.R. § 4.16(a) as of May 7, 2009, the claim for entitlement to a TDIU was bifurcated in the interest of fairness to the Veteran. A TDIU was granted from May 7, 2009, in the January 2012 Board decision. The issue of entitlement to a TDIU prior to May 7, 2009 was remanded for further development. In April 2013, the Veteran withdrew the claims of entitlement to an increased rating for degenerative joint changes of the lumbosacral spine and entitlement to service connection for a cervical spine disorder. Therefore, these matters are no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system was conducted. FINDING OF FACT The evidence of record fails to demonstrate that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment prior to May 7, 2009. CONCLUSION OF LAW The criteria for the assignment of a TDIU have not been met, prior to May 7, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(a)(3), 4.16(b), 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letter dated in November 2009 fully satisfied the duty to notify provisions. 38 U.S.C.A. §5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claim decided herein. This letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The November 2009 letter provided this notice to the Veteran. The Board notes that VCAA notice in accordance with Pelegrini and Dingess, in the November 2009 letter, was sent prior to the initial adjudication of the Veteran's claim in the January 2010 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the November 2009 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2012), and Dingess, supra. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012). In this regard, the Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration (SSA) records are associated with the claims folder. In January 2012, the Board remanded the issue to the agency of original jurisdiction (AOJ) for additional development. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the above stated issue was previously remanded in order for the RO to afford the Veteran VA examinations to determine the current severity of his service connected lumbar spine disability and to provide an opinion as to whether his cervical spine disability was related to his active duty service. The claim for TDIU was remanded as inextricably intertwined with those two claims. The requested examinations, to include opinions, having been afforded, the issue now return to the Board for appellate review. The Board recognizes a duty to provide a VA examination when it is necessary to decide the claim, that is, if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant VA examinations were provided in September 2009, December 2009, December 2012, and January 2013, to include an addendum opinion in February 2013. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2012). The Board finds that the VA examinations, including opinions, obtained in this case are more than adequate, as they collectively are predicated on a full reading of the VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, and the statements of the Veteran, and provide a complete rationale for any opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2012). Further, an additional VA examination to obtain an opinion as to the Veteran's employability prior to May 2009 is not required, as the evidence shows that the Veteran was employed full time through March 20, 2009. With regard to the March 2011 video hearing, in Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the March 2011 hearing, the Veterans Law Judge and representative for the Veteran outlined the issue on appeal and engaged in a colloquy with the Veteran as to substantiation of the Veteran's claims. This hearing was fully adequate. Further, with respect to any evidence that may have been overlooked, the Board remanded the case after the hearing to ensure that the Veteran was afforded updated VA examinations. Therefore, any deficiency in this regard is nonprejudicial. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Furthermore, as discussed above, the Board finds that there has been substantial compliance with its January 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Merits of the Claim A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more or (2) two or more disabilities where there is (a) at least one disability is ratable at 40 percent or more and (b) sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or from a single accident are considered one disability. Id. In addition, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, are considered one disability under this section. Id. 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, 356 (2000), the 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...." A Veteran may be considered as unemployable upon termination of employment on account of his service-connected disabilities, or where special consideration was given on account of the same, if it is satisfactorily shown that he or she is unable to secure further employment. See 38 C.F.R. § 4.18. "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." See Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). So even if the Veteran does not meet the threshold minimum percentage standards in § 4.16(a), extra-schedular consideration is to be given. Id.; see also 38 C.F.R. § 3.321(b)(1). The Veteran, prior to May 7, 2009 was service-connected for degenerative joint changes of the lumbosacral spine (40 percent disabling), asthma (30 percent disabling), and residuals of a left ankle sprain (10 percent disabling). Prior to May 7, 2009, he had a total combined disability rating of 60 percent. 38 C.F.R. § 4.16(a). Therefore, the Veteran did not meet the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) prior to May 7, 2009. However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran was employed as a correctional officer for 15 years, but retired as a result of his back disability in March 2009. See VA Form 21-4192, dated February 9, 2010. The record contains numerous statements from the Veteran's coworkers and supervisors at the Department of Corrections attesting to the Veteran's profound limitations at work due primarily to his back pain. For example, it was noted in the April 2003 VA examination that the Veteran had to stop working in the prison itself because he was afraid he would be unable to physically control an inmate. He started driving and walking along the perimeter of the prison rather than guarding the inmates directly. The record contains a record of the number of days missed in 2008 as a result of back pain. It was noted the Veteran missed almost 30 days, including a period from September 30 to October 22, as a result of his back pain. While there was evidence that the Veteran's service-connected back injury did interfere with his employment; there was no evidence that the Veteran was unable to maintain substantially gainful employment prior to May 7, 2009, as indicated by his full time employment at a correctional facility. See Faust v. West, 13 Vet. App. 342, 356 (2000). With consideration of the above, the Board finds that an extraschedular TDIU is not in order in this case as the record does not indicate that the Veteran was unemployable due to his service-connected disabilities prior to May 7, 2009. 38 C.F.R. § 4.16(b) (2012). The Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 4.16(b) are not met. See Bagwell, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1996). The Board acknowledges the Veteran's statements regarding how his service-connected lumbar spine disability interfered with his work as a guard at a correctional facility. The Board further notes that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed.Cir. 2006). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). While the Veteran is both competent and credible to attest to the fact that he has back pain that made it difficult to work at times, there is no evidence that he was substantially unable to maintain gainful employment as he was employed full time at a correctional facility through March 2009. In light of the above, the Board finds that a preponderance of the evidence demonstrates that the Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation and, therefore, he is not entitled to a TDIU prior to May 7, 2009. In making its determination, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU, the doctrine is not applicable in the instant appeal and his claim must be denied. Id. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs