Citation Nr: 1328092	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  06-09 767	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to the appellant's service-connected lower back disability and the residuals thereof.   


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel



INTRODUCTION

The appellant had active service from October 1961 to October 1964.

This appeal comes before the Board of Veterans' Appeals (BVA or Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Philadelphia, Pennsylvania.  The record indicates that in March 2006, when the appellant submitted his VA Form 9, Appeal to Board of Veterans' Appeals, he requested that he be given the opportunity to provide testimony before the Board at a hearing.  Subsequently, he withdrew his request for a hearing and as such, the Board will proceed with his appeal.  See 38 C.F.R. § 20.704(e) (2012).  

In April 2010, the Board issued a Decision/Remand.  At that time, the issues on appeal included entitlement to service connection for parasthesias of the right leg secondary to the back disability, entitlement to an increased evaluation for a lower back disorder, and entitlement to a TDIU.  In the Decision/Remand, the Board denied the appellant's claim for an increased evaluation and remanded the remaining two issues to the RO via the Appeals Management Center (AMC), in Washington, DC.  The purpose of the remand was to afford the Veteran an examination to obtain an opinion regarding the impact of his service-connected disabilities on his employability.  Such examination was accomplished in June 2010, with an addendum provided the following month.  Moreover, in May 2012, the claim was forwarded to the Director, Compensation and Pension for a determination as to whether a total disability evaluation could be granted based on an extraschedular basis.  The Director, Compensation and Pension provided an administrative review of the appellant's claim and placed a copy of that review in the claims folder.  

During the pendency of the appeal, in November 2010, service connection was granted by the AMC for parasthesias of the right leg secondary to the fracture of the third sacral vertebra with chronic lumbosacral strain.  



FINDINGS OF FACT

1.  The appellant is service-connected for a fracture of the third sacral vertebra with chronic lumbosacral strain, parasthesias of the right leg secondary to lower back disability, and a residual scar of the forehead.  

2.  The appellant's combined rating during the course of the appeal has ranged from 20 to 30 percent.

3.  The evidence of record indicates the appellant has four years of high school and has not worked for many years.  

4.  The appellant's service-connected back disability, and the residuals thereof, does preclude him from obtaining and retaining substantially gainful employment. 


CONCLUSION OF LAW

The criteria for a total disability rating based on individual unemployability due to the appellant's service-connected lower back disability, and the residuals thereof, from the date of his original claim for benefits, have been met.  38 U.S.C.A. §§ 1155, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b)(1) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the service member's claims file.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the 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).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

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 & Supp. 2012); 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, if any, 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 & Supp. 2012); 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 agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).

The Board finds that the AMC has substantially satisfied the duties to notify and assist as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue given the favorable nature of the Board's decision with regard to the issue of entitlement to a TDIU rating.

The claim at on appeal is entitlement to TDIU.  A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service member's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012).  Unemployability associated with advancing age or intercurrent disability may not be considered in determining entitlement to a total compensation rating.  38 C.F.R. § 4.19 (2012).  Factors to be considered are the appellant's employment history and his educational and vocational attainment.  Ferraro v. Derwinski, 1 Vet. App. 32, 33 (1991).

The regulatory scheme for a TDIU provides both objective and subjective criteria.  Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27, 1991).  The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2) (2012), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation.  Subjective criteria, set forth at 38 C.F.R. § 4.16(a) (2012), provide for a TDIU when, due to service-connected disability, a service member is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012).  In exceptional circumstances, where the appellant does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b) (2012).  A TDIU presupposes that the rating for the service-connected condition is less than 100%, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a service member's employability, the Board cannot overlook the level of education he completed, his professional training and employment history.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).

Employment is 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."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  "Marginal employment shall not be considered substantially gainful employment."  38 C.F.R. § 4.16(a) (2012).Generally, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

Pursuant to 38 C.F.R. § 4.16(b) (2012), 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 set forth in 38 C.F.R. § 4.16(a) (2012), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012).  

In this case, the Veteran is service-connected for degenerative joint disease of the lumbar spine, which has been rated 20 percent disabling throughout the appeal period.  He is also service-connected for associated radiculopathy of the right lower extremity, at a noncompensable level prior to June 8, 2010, and at 10 percent therefrom.  Finally, a noncompensable evaluation for a residual scar of the forehead has been in effect throughout the rating period on appeal.  Accordingly, a combined rating of 20 percent is in effect prior to June 8, 2010, and a 30 percent rating is in effect from that date forward.  Therefore, at no point during the rating period on appeal has the combined rating satisfied the percentage threshold under 38 C.F.R. § 4.16(a).

The appellant underwent a VA examination in June 2010.  The examiner indicated that the appellant's claims file was reviewed prior to the examination.  Upon completion of the examination, the appellant was diagnosed with traumatic arthritis of L4-5 and L5-S1 secondary to a fracture of the third vertebra with chronic lumbosacral strain along with spondylosis of the lumbar spine with degenerative disc disease, degenerative joint disease of the lumbar segment of the spine, and bilateral lower extremity radiculopathy.  The examiner further noted that the parasthesias noted in both legs was caused by the service-connected back disorder.  The examiner rated the appellant's condition as "severe."  An addendum was provided in July 2010 in which the examiner found that the Veteran's service connected disabilities render him unable to secure or follow a gainful occupation.  In reaching such conclusion, the examiner considered the Veteran's significant back pain, which required morphine, as well as his lower extremity radiculopathy.

In May 2012, the claim was referred to the Director of the Compensation Service.  The RO requested that the Office of the Director of the Compensation Service provide a decision as to whether entitlement to individual unemployability could be granted on an extraschedular basis under 38 C.F.R. § 4.16(b).  

Responding to the RO's request, the Office of the Director of the Compensation Service promulgated a letter in September 2012.  In that response, the following was provided:

The medical evidence indicates there have been no significant changes in the Veteran's service-connected back condition since 2008.  The examiner did not point to any evidence that supports his conclusion.  The record also offers no evidence which demonstrates the Veteran cannot perform a sedentary occupation. . . .

The record does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities.  Entitlement to TDIU on an extraschedular basis is denied.

The claim has since been returned to the Board for further review.

When the percentage requirements of 38 C.F.R. § 4.16(a) (2012) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the service member is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies).  38 C.F.R. §§ 3.321(b), 4.16(b) (2012).  In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims, hereinafter the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU 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.  

In this case, the RO/AMC has submitted the service member's TDIU claim to the Director of Compensation and Pension for extraschedular consideration.  The Director, Compensation and Pension, has been provided with the opportunity to make a determination on this matter.  Because this review has occurred, in accordance with case law, the Board may now consider whether a TDIU may be assigned on an extraschedular basis.

The record reflects that the appellant has completed one year of high school.  There is no indication from the claims folder that he has ever received vocational rehabilitation training or any other specialized training.  His jobs have included that of crane operator, truck driver, factory worker, electric tractor operator, and asphalt worker.  

The appellant avers that as a result of his service-connected back disabilities, he is unable to obtain and maintain gainful employment.  He has been treated for complaints involving his service-connected disabilities and other disorders for which service connection has not been granted.  They show that he has very often sought treatment and his doctors have prescribed numerous drugs for the pain.  Moreover, and most importantly, a VA health care personnel have concluded that the appellant's service-connected back disabilities in total do affect his employability. 

Along with the VA medical treatment records, the appellant's Social Security Administration (SSA) records have been obtained and included in the claims folder.  These records show that the appellant has been awarded SSA benefits.  It is noted that the main disability for which the appellant has been found by SSA to be unemployable is a nonservice-connected disorder.

As indicated above, the Board must make a determination as to whether the appellant may be awarded a TDIU pursuant to the rating criteria found at 38 C.F.R. § 4.16(b)(1) (2012).  The term "substantially gainful occupation" was discussed by the Court, in Faust v. West, 13 Vet. App. 342 (2000).  Although 38 C.F.R. § 4.16(a) (2012) does not specifically define substantially gainful employment, it does provide that "marginal employment" is not substantially gainful employment, and thus implies that employment that is more than marginal may be considered to be "substantially gainful employment."  Id. at 355-56; citing Moore (Robert) v. Derwinski, 1 Vet. App. 456, 358 (1991) (stating that, for the purposes of § 4.16(a), "substantially gainful employment . . . . suggests a living wage").  The Court also noted that SSA regulations define "substantially gainful activity" as "work that -- (a) involves doing significant productive physical or mental duties; and (b) is 
done . . . for pay or profit," 20 C.F.R. § 404.1509 (2012), and held that where, the service member became employed, as shown by clear and convincing evidence, at a substantially gainful occupation -- i.e., one that provides annual income that exceeds the poverty threshold for one person, such employment constitutes, as a matter of law, a substantially gainful occupation.  Faust, 13 Vet. App at 355-56.

The Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993) held that for a veteran to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor that takes his case outside the norm.  See also 38 C.F.R. §§ 4.1, 4.15 (2012).  The fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high schedular rating that is assigned is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Moreover, there is no statute or regulation that requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable because of one or more service-connected disabilities.  See Gary v. Brown, 7 Vet. App. 229 (1994); see also Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19 (2012).  Marginal employment is not to be considered substantially gainful employment.  Factors to be considered, however, will include the veteran's employment history, educational attainment, and vocational experience.  38 C.F.R. § 4.16 (2012).

While the medical records are not without some ambiguity, the VA medical records contain a VA medical doctor's opinion that that the service member is totally disabled as a result of his service-connected back disabilities.

As previously noted, the record contains the medical records and statements considered by the SSA with respect to finding the appellant disabled.  The SSA has clearly found that nonservice-connected psychiatric problems to be disabling.  However, from that same decision, the Court has said that the decision by the SSA will not be controlling for purposes of VA adjudications.  In other words, for this determination, the SSA records, because they do not specifically address the appellant's employability in relationship to his back disorder, have no bearing, either positive or negative, with the Board's determination.  Martin v. Brown, 4 Vet. App. 136 (1993).  

The record does not contain any medical records that would fully contradict the appellant's written statements and the VA doctor's June 2010 opinion, with the addendum of July 2011, finding that the Veteran is unable to work as result of his service-connected back disability and the residuals thereof.  The examiner did not state that the appellant could perform sedentary employment; instead, the examiner, without reservation, specifically concluded that the appellant was unemployable given the severity of his lower back disability and the treatment received for said disorder.  

Also, given the impact his service-connected disability and the residuals has on his employability is within his personal observation, the Board finds that the appellant's numerous statements on this matter to be competent and credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In this regard, the appellant has provided a generally consistent account, to include statements made solely for the purpose of obtaining medical care and treatment.  Moreover, the objective medical findings tend to corroborate his account of symptomatology.  Thus, to this extent, the Board finds the appellant's statements on these matters competent, credible and highly probative evidence, and they tend to support the claim.  See also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence).

Medical evidence that contradicts the determination made by the VA health care provider who has examined the appellant has not been presented.  It is the Board's opinion that because of the manifestations produced by the disorders along with the complaints caused by his disabilities, it would be unlikely that the appellant would be able to procure a job that would reasonably accommodate the care and treatment of said disability.  While a negative opinion was offered in May 2010 by the Director, Compensation and Pension, this is an adjudication of the issue and not a medical opinion. 

In determining whether a TDIU is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied.  38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When evaluating the appellant's service-connected disabilities in toto and their effect on his ability to obtain and maintain gainful employment, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service connected condition, 38 C.F.R. § 3.102 (2012) [which requires that reasonable doubt be resolved in the appellant's favor] dictates that such signs and symptoms be attributed to the service-connected condition(s).  See Mittleider v. West, 11 Vet. App. 181 (1998).  

In this case, although the entire record is not without a measure of ambiguity due to the appellant's other nonservice-connected disabilities, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance.  As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied.  Therefore, pursuant to 38 C.F.R. § 4.16(b)(1) (2012), it is the decision of the Board that the appellant's service-connected back disability and the residuals thereof render him unable to attain and maintain gainful employment, and a total disability rating for compensation based on individual unemployability due to his service-connected disabilities is warranted.  The appellant's claim is therefore granted.

Additionally, the Board has considered whether it is appropriate to assigned "staged ratings", or more specifically a staged TDIU, in accordance with Fenderson v. West, 12 Vet. App. 119 (1999), supra.  However, the Board finds that the evidence demonstrates more consistently and throughout the appeal that the appellant meets the criteria for a total disability evaluation from the date of his claim.  Therefore, the assignment of staged evaluations in this case is not necessary. 


ORDER

Entitlement to a TDIU, from the date of the appellant's original claim for benefits, is granted, subject to the regulations controlling disbursement of VA monetary benefits. 



____________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs