Citation Nr: 1327645	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  08-34 199	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to March 16, 2011.  


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from September 1963 to September 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The rating decision granted service connection for a back disability and assigned an initial 10 percent evaluation.  

In an unappealed May 2008 rating decision, the RO denied the Veteran's claim for a TDIU.  

The Veteran appealed the January 2008 rating decision to the Board and in an October 2011 decision, the Board took jurisdiction over the issue of entitlement to a TDIU because it was raised again by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The Veteran and his spouse testified at a hearing in June 2010 before the undersigned.  A copy of the transcript has been associated with the claims file.  At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO.  38 C.F.R. §§ 20.800, 20.1304(c) (2012).

In October 2011 and March 2013, the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board.  

In February 2013, the Veteran submitted a medical opinion from his VA physician.  It was accompanied by a waiver of initial RO consideration.  38 C.F.R. §§ 20.800, 20.1304(c) (2012).

In a March 2013 decision, the Board granted a TDIU effective March 16, 2011.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The preponderance of the evidence shows that prior to March 16, 2011, the Veteran was capable of sedentary employment.  


CONCLUSION OF LAW

A TDIU prior to March 16, 2011 is denied.  38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA has satisfied its duty to notify by issuing a preadjudication notice letter in January 2008.  This letter advised the Veteran of what evidence was required to substantiate his TDIU claim, and of his and VA's respective duties for obtaining evidence.  It also provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473.  

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, records from the Social Security Administration (SSA), and reports of VA examinations from March 2011 and June 2012.  The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests.  The examiners also provided rationales for the opinions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). 

The Veteran and his spouse testified at a hearing before the undersigned in June 2010.  That hearing pertained to his low back claim, which is not currently before the Board.  However, the Veteran asserted at his hearing that his back disability precluded employment.  At a hearing on appeal, 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  As noted above, the Board had not yet taken jurisdiction of the TDIU claim.  Further, additional evidence needed to substantiate a TDIU claim was not submitted.  However, the Board finds that the Veteran was not prejudiced by this omission.  As noted above, the Veteran received a letter in January 2008 that substantially explained what was required to substantiate his TDIU claim and there is no indication that he does not understand what is necessary to substantiate his claim.  Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claims; hence, he is not prejudiced.

In this case, the Veteran and his representative had ample opportunity to submit evidence and argument to substantiate the claim.  Additionally, the Board remanded the matter, thereby requesting additional development and providing the Veteran with additional opportunities to submit evidence and argument.  On appellate review, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either individual identified any prejudice in the conduct of the Board hearing.  No additional action in this regard is warranted. 

This case was remanded in October 2011 and March 2013 so that the Veteran could undergo a VA examination for his TDIU claim and so that the issue of entitlement to an extraschedular TDIU could be referred to the Director, Compensation Service for initial consideration.  The Veteran underwent an adequate VA examination in June 2012 and the issue of entitlement to an extraschedular TDIU was referred to the Director, Compensation Service in March 2013.  There was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

TDIU

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible 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). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the Veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Id., (citing 38 C.F.R. §§ 4.1 , 4.15). 

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. 

VA regulations establish objective and subjective standards for an award of a total rating based on unemployability.  When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more.  When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).  A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 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 section 4.16(a). 

Prior to March 16, 2011, the Veteran had two service-connected disabilities: a low back disability evaluated as 10 percent disabling and coronary artery disease (CAD) evaluated as 30 percent disabling.  His combined disability evaluation was 40 percent, which does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a).  All cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular evaluation.  38 C.F.R. § 4.16(b).  An extraschedular rating is warranted upon a finding that the Veteran is unable to secure or follow substantially gainful employment.  38 C.F.R. § 4.16(b).  

The Board does not have the authority to assign an extraschedular TDIU rating in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  However, in March 2013, the RO referred the Veteran's case to the Director, Compensation Service.  In June 2013, the Director denied entitlement to an extraschedular TDIU.  Because the Director, Compensation Service has already addressed the issue, the Board may now consider it without prejudice to the Veteran.  

Prior to March 16, 2011, the SSA determined that the Veteran was disabled beginning on July 1, 2008, due to lumbar stenosis, disc degeneration, and back pain, for which he is service connected.  The SSA records indicate that the Veteran and his spouse owned and operated a landscaping business from October 1974 to July 2007 and also did landscaping design; that he worked 8 hours per day, 5 days per week but that he worked longer hours in the summer and shorter hours in the winter; his education was reported as having completed one year of college.  With respect to his business, the Veteran reported that in his job he used machines, tools or equipment; used technical knowledge or skills; and that he did writing, completed reports, or the like.  He indicated that per day, he walked for four hours; stood for one hour; sat for three hours; climbed for one hour; stooped for two hours; kneeled for two hours; crouched for two hours; crawled for one hour; handled, grasped or grabbed big objects for three hours; reached for three hours; and wrote, typed or handled small objects for three hours.  He reported that he also lifted and carried landscaping equipment, and/or trash and debris, and frequently lifted 25 pounds.  The Veteran also reported that half the time he supervised around three individuals; that he hired and fired people; and that he was a "lead worker".  While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991).  However, given that in this case SSA addressed the specific question now before the Board (i.e., the earliest date at which the Veteran was too disabled to be gainfully employed), the Board finds the SSA determination to be probative although not necessarily dispositive.  

In July 2008, Dr. T. T., the Veteran's private physician who treats his back disability, found that the Veteran was "temporarily totally disabled" because of his service-connected back disability.  It caused difficulty sitting, standing, and walking.  Dr. T. T. stated that if the Veteran tried to exercise, there was a high chance that it would irritate his sciatic nerve and cause further disability or even nerve damage.  Dr. T. T. found that the Veteran's main issue was not back pain; his symptoms were approximately 90 percent from the "buttock caudally into his legs."  Surgery was recommended.  Dr. T. T.'s statement provides probative evidence in favor of the Veteran's claim.  

VA treatment from March 2010 showed that the Veteran rode 15 miles per day on his bicycle.  In April 2010, he reported walking three and a half miles at a time without symptoms of his CAD.  These records provide evidence against the Veteran's claim because they show that he is capable of physical activity.  

At his June 2010 hearing, the Veteran testified that he could not work because of his back disability.  He owned a tree farm for 34 years and could no longer perform the labor necessary to run the farm.  He stated that he was receiving conflicting advice from his private physician and his VA physician.  His private physician advised against exercise and his VA physician recommended it.  The Veteran is competent to discuss observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  The conflicting treatment records he described are confirmed by the record; his statements are credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The Veteran's testimony provides probative evidence in support of his claim.  

The Veteran underwent a VA examination to evaluate the severity of his CAD in March 2011.  The examiner found that his CAD did not impact his ability to work.  He also underwent a VA examination to assess the severity of his low back disability in March 2011.  The examiner found that the Veteran could perform sedentary work and exert mild to moderate force occasionally.  He could also frequently exert a negligible amount of force to lift, carry, push, pull, or otherwise move objects.  The examiner explained that sedentary work involved sitting most of the time, but may also include walking or standing briefly.  He defined a sedentary job as one that standing and walking were required only occasionally.  He concluded that the Veteran's back disability would cause decreased concentration, poor social interactions, problems lifting and carrying, and pain.  It restricted his ability to lift, carry, stoop, crawl, and sit or stand for prolonged periods.  Because the examiner found that the Veteran was capable of sedentary employment, the examination report provides significant probative evidence against his claim.  

There is no additional medical or lay evidence of record for the period prior to March 16, 2011 that addresses the Veteran's ability to work.  

In March 2013, the RO referred the Veteran's case to the Director, Compensation Service for consideration of an extraschedular TDIU.  In June 2013, the Director found that an extraschedular TDIU was not warranted.  This decision was based upon the evidence of record prior to March 16, 2011 which showed that the Veteran was capable of sedentary employment prior to that date.  

The Board finds that the preponderance of the evidence is against service the assignment of an extraschedular TDIU prior to March 16, 2011.  The most probative evidence of record shows that the Veteran was unable to perform manual labor on his tree farm, as described in his June 2010 hearing testimony.  Dr. T. T.'s July 2008 assertion that the Veteran was "temporarily totally disabled" is less probative because he found that the condition was not permanent.  Although he asserted that he was unable to work because of his back pain, March 2011 examiners concluded that his CAD did not impact his ability to work and that his back disability did not prevent him from performing sedentary employment.  The Board finds that the findings of the VA examiner outweigh the Veteran's lay assertion because the examiner reviewed the entire record, examined the Veteran, and considered the possibility of sedentary employment as opposed to physical labor.  In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision.  







							(Continued on the next page)

ORDER

An extraschedular TDIU prior to March 16, 2011 is denied.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs