Citation Nr: 1327256 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-17 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating for individual unemployment (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to October 1975 with additional service in the Army National Guard and the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a rating greater than 40 percent for a lumbar spine disability. The Veteran appealed the decision. In an October 2011 decision, the Board found the issue of entitlement to a TDIU had been raised in conjunction with the claim of increased rating and remanded the matter for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran had substantially gainful employment prior to January 2009 and has been gainfully employed from April 12, 2010. 2. From January 2009 to August 13, 2009, the percentage requirements for TDIU under section 4.16(a) of VA regulations were not met, and there was insufficient evidence that the service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. 3. From August 13, 2009, to April 12, 2010, the percentage requirements for TDIU under section 4.16(a) of VA regulations were met, but the evidence does not indicate that the service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16(a), (b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a "substantially gainful" occupation (i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16(b) (2012); Moore v. Derwinski, 1 Vet. App. 356 (1991), as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more 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). In determining whether the schedular threshold is met, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor if applicable, are considered one disability. Id. Disabilities resulting from common etiology or affecting a single body system are also considered one disability. Id. Entitlement to TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Throughout the appeal, service connection has been in effect for a lumbar spine disability, rated as 40 percent disabling. Effective August 13, 2009, service connection was granted for radiculopathy of the right and left lower extremity, rated as 20 percent disabling per extremity prior to January 24, 2012, for a combined rating of 60 percent, and 40 percent per extremity from January 24, 2012, for a combined rating of 80 percent. Because the disabilities are from a common etiology, the lumbar spine disability, the schedular threshold percentage requirements for entitlement to a TDIU rating under section 4.16(a) of VA regulations were met as of August 13, 2009. The record indicates that the Veteran worked on a part-time basis until approximately January 2009, was unemployed from January 2009 until April 12, 2010, and worked full-time from April 12, 2010. See January and May 2004, April 2005, October 2006, May and October 2007, April and December 2008, January 2012 VA treatment records. See also October and December 2006 and December 2009 VA examination records; December 2008 hearing transcript; January 2009 and January 2010 statements from Veteran; February 2012 "report of contact." The Board acknowledges that an August 2005 VA examination record reflects the Veteran's history that he "had not been able to work for many years due to his medical and orthopedic conditions." This Board finds this history is not credible, and thus not probative, because it is contradicted by VA treatment records, dated both before and after the August 2005 VA examination, which reflect histories of working as a security guard and then working part-time after retiring from the security job some time after May 27, 2004. Thus, the Board finds the only applicable period of unemployment dates from January 2009 until April 12, 2010. The Board further finds that this period of unemployment is the only period during which the Veteran was not engaged in substantially gainful occupation. The Board acknowledges that the Veteran only worked part-time prior to January 2009. The evidence, including statements from the Veteran, does not indicate that this employment was "marginal," however. In the absence of such evidence, the Board finds the part-time employment was substantially gainful. Thus, the issue is whether the Veteran was "unemployable" at any time between January 2009 and April 13, 2010. Prior to August 13, 2009, the schedular percentage requirements for entitlement to a TDIU were not met. A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for 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). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, 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 disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence of record does not indicate that an extraschedular rating is warranted. The Board acknowledges that the lumbar spine disability and associated radiculopathies resulted in "significant effects" on occupational functioning and required him to limit his duties which prevented him from obtaining or maintaining certain positions in his field. See, e.g., August 2005, December 2006, and December 2009 VA examination records; December 2008 hearing transcript; undated letter from potential employer. Economic inadaptability is taken into account in the evaluation assigned, however, and the evidence of record does not suggest that the Veteran was incapable of performing any substantially gainful employment due to the service-connected disabilities prior to August 13, 2009. To that extent, the Board notes that the record does not include any findings or histories of an inability to perform or maintain substantially gainful employment prior to August 13, 2009. Furthermore, the Board finds the evidence that the Veteran was later able to transition to full-time work is significant, particularly because the evidence does not indicate that the lumbar spine disability underwent an improvement between this period and April 12, 2010, when the Veteran began working full-time. The Board acknowledges that a January 2012 VA examination record reflects an examiner's determination that the Veteran's disabilities rendered him unable to secure and maintain substantially gainful employment, both physical and sedentary. The Board finds this determination is not probative evidence of unemployability prior to August 13, 2009, however, as it is contradicted by the evidence which documents that the Veteran was employed in January 2012 at the time of the examination, and it is based on manifestations more severe than described during this period. In sum, the evidence of record does not include evidence that would take the Veteran's case outside the norm. Accordingly, a total disability rating based upon individual unemployability due to a service-connected disability under the provisions of 38 C.F.R. § 4.16(b) is not warranted at any time prior to August 13, 2009. From August 13, 2009, to April 12, 2010, the schedular percentage requirement for a TDIU rating under section 4.16(a) were met. Thus, the question remaining is whether there is evidence that the Veteran was unable to secure a substantially gainful occupation as the result of the service-connected disabilities during this time. 38 C.F.R. § 4.16(a). The evidence does not indicate that a TDIU is warranted for this period. The record contains no findings that the Veteran's service-connected disabilities render him unable to obtain or sustain employment during this period. Although the record includes opinions that the service-connected disabilities significantly affected the Veteran's occupational functioning and histories from the Veteran that the lumbar spine disability precluded him from performing certain positions in his field, the evidence does not include any findings or histories of an inability to perform or maintain substantially gainful employment during this period. Moreover, the Board finds the Veteran's return to work fulltime in April 2012 is highly probative evidence that he was not "unemployable" during this time as the evidence does not suggest that the lumbar spine disability underwent an improvement between this period and April 12, 2010, when the Veteran began working full-time. The Board acknowledges that a January 2012 VA examination record reflects an examiner's determination that the Veteran's disabilities rendered him unable to secure and maintain substantially gainful employment, both physical and sedentary. The Board finds this determination is not probative evidence of unemployability during this period, however, as it is contradicted by the evidence which documents that the Veteran was employed in January 2012, at the time of the examination, and it is based on manifestations more severe than those demonstrated between August 13, 2009, and April 12, 2010. Compare December 2009 VA examination record and February 2010 addendum with August 2010 and January 2012 VA examination records. In this case, the evidence does not probatively suggest that a TDIU is warranted: the medical evidence contains no findings suggestive of unemployability and the Veteran has not reported that his disabilities rendered him unemployable during this period. Consequently, after review of the evidence, the Board finds that the service-connected disabilities do not preclude the Veteran from obtaining or maintaining employment, and TDIU is not warranted. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. Additionally, this 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 Board finds that the duty to notify was satisfied by a letter sent to the Veteran in December 2011 with regard to the claim of entitlement to a TDIU. The letter addressed all of the notice elements, and the matter was subsequently readjudicated in a April 2012 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist was also met in this case. All pertinent VA and private treatment records have been obtained and associated with the file. VA examinations with opinions as to the occupational impact of the service-connected disabilities are of record, and although the record does not include an opinion on employability with respect to the period at issue (i.e. from January 2009 to April 2010), the record includes adequate evidence to determine the Veteran's employability during this period without such an opinion. To this extent, the Board notes that the Veteran underwent VA examinations in August 2005, December 2006, December 2009, and August 2010. The examination records, and associated findings as to occupational effect, are adequate, as each examiner predicated the findings on a full reading of the medical records in the Veteran's claims file and considered all of the pertinent evidence of record and the statements of the appellant, and the examiners provided a rationale for the reported findings on occupational impairment. Accordingly, the Board finds that VA's duty to assist been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that new evidence, specifically VA records, was received after the April 2012 supplemental statement of the case and that the claim was not subsequently readjudicated. Review indicates that the "new" evidence is not pertinent to the claim decided herein, however; rather, the evidence is cumulative of previous histories and findings and provides no probative information pertinent to the claim decided herein. 38 C.F.R. §§ 19.37, 20.1304. Thus, readjudication is not needed. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). ORDER Entitlement to a TDIU is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs