Citation Nr: 1327911 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 04-38 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran had verified active duty for training in the Army National Guard from January 1991 to February 1991. He also had additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Although the Veteran did not submit a formal Substantive Appeal following a July 2007 Statement of the Case (SOC) on the TDIU issue, the United States Court of Appeals for Veterans Claims (Court) in accord with Rice v. Shinseki, 22 Vet. App. 447 (2009). See July 28, 2010, Memorandum Decision of the Court. All other appellate claims have been finally adjudicated or otherwise addressed, with only the TDIU claim remaining for appellate consideration. This case was previously before the Board on multiple occasions, most recently in April 2011 and May 2012 when the TDIU claim was remanded for further development to include referral of his TDIU claim to the Under Secretary for Benefits or Director of Compensation and Pension Services for consideration of assignment on an extraschedular basis. A Memorandum of extraschedular consideration was completed in March 2013, and all other development directed by the Board's remands on this issue appears to have been substantially accomplished. Therefore, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. Service connection is in effect for a left shoulder disability; radiculopathy of the left upper extremity; cervical spinal stenosis at C6-C7; and radiculopathy of the right upper extremity. All of these disabilities are evaluated as 20 percent disabling, for a combined disability rating of 60 percent. 2. The competent and credible evidence of record reflects the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities, particularly in light of his education, training, and work history. CONCLUSION OF LAW The criteria for a grant of TDIU due to service-connected disabilities are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, for the reasons detailed below, the Board finds that the Veteran is entitled to a TDIU due to his service-connected disabilities. As this represents a complete grant of the benefit sought on appeal with respect to this claim, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). It is the established policy of the 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). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to a claimant's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran essentially claims that his established service-connected disabilities prevent gainful employment, warranting a TDIU rating. He is currently service-connected for a left shoulder disability; radiculopathy of the left upper extremity; cervical spinal stenosis at C6-C7; and radiculopathy of the right upper extremity. All of these disabilities are evaluated as 20 percent disabling, for a combined disability rating of 60 percent. See 38 C.F.R. § 4.25. Therefore, he is only entitled to consideration of a TDIU on an extraschedular basis. Pursuant to 38 C.F.R. § 4.16(b) , when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice, 22 Vet. App. at 452. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. Accordingly, as detailed in the Introduction, the Board remanded this case in May 2012 for such initial consideration of TDIU on an extraschedular basis. As detailed in a March 2013 Memorandum, it was concluded below that a TDIU is not warranted on an extraschedular basis. Although the Board may not assign an extraschedular rating in the first instance, after a referral has been made and the Director of the Compensation and Pension Service has made a determination regarding TDIU, the Board has jurisdiction to review that determination on a de novo basis. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). For the reasons set forth below, the Board disagrees with that determination and finds that the evidence supports the Veteran's claim of entitlement to a TDIU on an extraschedular basis. The record reflects the Veteran had three years of high school, and that he received training in building maintenance from 1980 to 1981. He had no additional formal education. He also indicated that he last worked full-time in 1990 as a painter, and that he became too disabled to work beginning in 1991. There are also references to his having worked in a sawmill, as well as other manual labor. The Veteran has submitted his own statements, as well as a supporting lay statement, that he has tried to find work but no one will hire him in light of the impairment caused by his service-connected disabilities. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Here, the Board finds that the Veteran's own statements, as well as the supporting lay statement, regarding his difficulty finding employment due to the impairment of his service-connected disabilities to be credible. This lay evidence describes symptoms and/or efforts to find employment that a lay person is competent to observe. In addition, nothing in the record explicitly refutes this lay evidence. The Board further observes that competent medical evidence is of record which addresses the Veteran's employability due to his service-connected disabilities. For example, in an August 2008 private medical statement, the Veteran's physician asserted, in pertinent part, that he was disabled for left sided neck pain that radiated into his hands, and had been too disabled to work since 1991. As this statement only referenced symptoms of the Veteran's service-connected disabilities, it does indicate the physician believed the service-connected disabilities alone rendered the Veteran unemployable. Also of record, a July 2011 VA examiner commented, in pertinent part, that after a thorough review of the Veteran's history and his claims file, including his treating physician's note dated in August 2008, and his VA medical records; as well as a thorough examination, it was his opinion that he had severe restrictions on his employability as far as physical labor was concerned. The examiner opined the Veteran was unable to perform any physical labor because of his limitations with any bending, lifting, or twisting. The examiner stated that the Veteran also had severe restrictions for sedentary labor. The examiner indicated that the Veteran could sit for approximately thirty minutes at a time and that he was limited with regard to moving his hands, answering the phone, or lifting papers for five or ten minutes. The examiner stated that such limitations would have to be accommodated as to the Veteran's ability to do sedentary work. Moreover, the same VA examiner reiterated this opinion in March 2013. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Here, the VA examiner is aware of the Veteran's medical and work history from review of his VA claims folder, and current impairment from the physical examination itself. Moreover, the examiner supported his opinion by stated rationale that is not expressed in speculative or equivocal language. Therefore, the Board finds this opinion to be persuasive and entitled to significant weight in evaluating this claim. The Board finds the VA examiner's opinion that the service-connected disabilities prevent physical labor to be particularly significant in light of the fact the Veteran's work history was in the manual labor field. Given this work history, as well as the fact that the Veteran did not have any formal education outside of 3 years of high school and training in building maintenance, the record indicates he would only be qualified for very basic sedentary work such as answering the telephone. However, the VA examiner indicated that the Veteran would have severe restrictions in sedentary employment to include answering the telephone. The Board acknowledges that the VA examiner indicated that such limitations would have to be accommodated as to the Veteran's ability to do sedentary work. However, given the Veteran's education and work history, and the type of severe restrictions in sedentary employment identified by the VA examiner, it would appear the type of sedentary employment the Veteran would be able to do would be marginal at best. The legal standard for determining TDIU is whether a claimant is able to obtain and/or maintain substantially gainful employment. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the claimant resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Moreover, relevant regulatory provisions specifically state that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342 (2000). The Board also wishes to emphasize that the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Other applicable, general policy considerations are resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent and credible evidence of record reflects he is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities, particularly in light of his education, training, and work history. Therefore, TDIU is warranted on an extraschedular basis. ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to TDIU due to service-connected disabilities is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs