Citation Nr: 1329480 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-26 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 4, 2009, pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1950 to November 1951. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which implemented a Board decision in August 2010 that granted TDIU. A notice of disagreement was received in October 2010, a statement of the case was issued in September 2011, and a substantive appeal was timely received in October 2011. As a preliminary matter, the Board notes that in April 2012, the Board adjudicated the Veteran's claim of entitlement to TDIU prior to March 4, 2009, on a schedular basis, and remanded this case for consideration on an extraschedular basis only. As such, the issue of entitlement to TDIU prior to March 4, 2009, on a schedular basis, is no longer before the Board. In April 2012, the Board remanded this claim for additional development. The RO was instructed to inform the Veteran of the requirements for TDIU on an extraschedular basis, which was completed in October 2012 and to refer the claim of entitlement to TDIU, pursuant to 38 C.F.R. § 4.16(b) to the C&P Director, which was completed in March 2013. The RO was to then readjudicate the issue, which was completed in a May 2013 Supplemental Statement of the Case (SSOC). The Board finds that there has been substantial compliance with its April 2012 remand. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). That development having been completed, the claim is now ready for appellate review. FINDING OF FACT Prior to March 4, 2009, the competent and probative evidence of record does not demonstrate that all forms of substantially gainful employment were precluded due solely to the Veteran's service-connected disabilities. CONCLUSION OF LAW Prior to March 4, 2009, entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b) is not established. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In the present case, the Veteran was informed specifically of the evidence required to substantiate a TDIU claim on an extraschedular basis by a letter sent to the Veteran in October 2012. The claim was subsequently adjudicated in a Supplemental Statement of the Case (SSOC) in May 2013. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in February 2007, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, post-service private, and VA treatment records have been obtained. The Veteran has been afforded VA examinations. Virtual VA records have been reviewed. Additionally, the Veteran's claim was sent to the Compensation and Pension (C&P) Director for extraschedular consideration in December 2012. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to TDIU Prior to March 4, 2009, Pursuant to 38 C.F.R. § 4.16(b) The Veteran is seeking entitlement to a TDIU rating, on an extra-schedular basis, prior to March 4, 2009. He contends he should be entitled to TDIU beginning on July 28, 2005 (the date of the receipt of the claim). See September 2010 statement. Total disability ratings for compensation purposes 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service- connected disability or unemployability). Prior to March 4, 2009, the Veteran was 40 percent service connected for a low back disability from May 1982 and 10 percent service connected for neuropathy of the left lower extremity, from August 2005. His combined disability evaluation was 40 percent disabling from May 1982 and 50 percent disabling from August 2005. Effective March 4, 2009, he had a 60 percent combined evaluation. As determined in the April 2012 Board decision, the Veteran did not meet the schedular percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to TDIU prior to March 4, 2009, as the Veteran's combined rating for his service-connected disabilities was 50 percent, prior to March 4, 2009. However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extra- schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service (C&P), for extra-schedular consideration all cases of Veterans, who are unemployable due to service- connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). Unlike the criteria for an extra-schedular rating under 38 C.F.R. § 3.321, the grant of an extra-schedular rating for TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC. 6-96 (1996). This means that the Board should take into account the Veteran's specific circumstances including his disability and his employment history when determining if he is unable to work. The sole fact that a Veteran 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). Although the Board is precluded from initially assigning an extra-schedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996). The Veteran was afforded a VA spine examination in October 2005. He had a range of motion of 30 degrees of flexion, 15 degrees extension, right and left lateral flexion to 15 degrees, left rotation to 30 degrees, and right rotation to 15 degrees. The examiner indicated that the Veteran could not work in a physical environment due to problems with bending, lifting, and walking long distances. There was no indication that the Veteran could not perform sedentary work. Importantly, the examiner noted that the Veteran was not incapacitated. In April 2005, the Veteran's private physician indicated that the Veteran underwent a spinal fusion, had constant back pain, and was unable to walk long distances or stand for any length of time. In January 2006, the Veteran's employer sent a letter indicating that the Veteran was out of work on two occasions when he had back surgery, but that he returned from each surgery and continued working until retirement. In March 2006, the Veteran's spouse stated that the Veteran retired because he was not able to fulfill his job requirements due to his back problems. Statements from the Veteran's former coworkers in February 2006 and March 2007 related that he had back problems while working as an industrial engineer managing a department and was never able to do required heavy lifting. In March 2007, the Veteran's private physician stated that the Veteran had a revision total hip arthroplasty on his left side, and previous back surgery three times, which has reduced his ability to maintain a normal lifestyle. The physician noted that the Veteran also had some cardiac problems after his total hip revision. The physician opined that the Veteran's symptoms are such that he is precluded from any gainful employment or ability to maintain a normal lifestyle, and he is "completely disabled from any and all activities." See March 2007 letter. The Board notes that the Veteran indicated during an August 2009 VA examination that he had a desk job working as an industrial engineer and retired in 1994, noting that prolonged sitting at work bothered him. In December 2012, the Veteran's claim was referred to the C&P Director for extra-schedular consideration prior to March 4, 2009, pursuant to 38 C.F.R. § 4.16(b). The Director issued an Administrative Decision in March 2013. The Director stated that while there was an opinion from the Veteran's private physician indicating that the Veteran was unemployable, the Veteran's nonservice-connected disorders were listed in the reasoning. The Director noted that prior to March 4, 2009, the VA examination showed that the Veteran had range of motion in the spine and he ambulated normally, without assistance. The Director stated that there was no indication that the Veteran would be unemployable in all occupations, as he worked full-time in a sedentary position until he retired. Importantly, the Director noted that the Veteran had several nonservice-connected disorders that would have some effect on employment functioning, but TDIU must be granted solely on the basis of impairment arising from service-connected disabilities. The Director stated that the totality of evidence does not indicate that the Veteran would have been unemployable in all environments, including a sedentary one, due solely to service-connected disabilities. Thus, the Board finds that the preponderance of the evidence of record indicates that prior to March 4, 2009 the Veteran was not precluded from working due solely to his service- connected disabilities. Rather, the evidence shows that he was limited from work that requires strenuous activity or heavy lifting. As such, based solely on the Veteran's service-connected disabilities, without regard to his nonservice-connected disabilities, the Board finds the evidence prior to March 4, 2009 indicates the Veteran was capable of performing physical and mental acts required by employment, albeit it with some adjustments. Therefore, he is not unemployable for VA purposes. In reaching this decision, the Board has considered the Veteran's private physician's opinion from March 2007 that attributed the Veteran's inability to work to both his nonservice-connected hip and heart disorders and service- connected back disability. However, that opinion is afforded very low probative value, as it does not show that it was at least as likely as not that the Veteran was unemployable solely due to service-connected disabilities. Accordingly, that opinion is insufficiently probative to warrant a grant of the claim. Additionally, the Board has considered the lay statements from the Veteran's wife and co-workers, which are found to be competent. Importantly, however, the Board finds that the lay statements submitted are not credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). First, as stated previously, the Veteran's wife reported that the Veteran retired because he was not able to fulfill his job requirements due to his back problems. See March 2006 statement. However, the Veteran's employer stated in January 2006 that the Veteran was out of work on two occasions when he had back surgery, but that he returned from each surgery and continued working until retirement. Furthermore, the Veteran's former co-workers stated that the Veteran had back problems while working as an industrial engineer managing a department and was never able to do required heavy lifting. See February 2006 and March 2007 statements. Yet the Veteran himself reported during an August 2009 VA examination that he had a desk job working as an industrial engineer until retirement. As such, the Board finds that the Veteran's wife statement, reporting that the Veteran retired because he was not able to fulfill his job requirements due to his back problems conflicts with the Veteran's employer's statement, which indicated that although the Veteran was out of work on two occasions when he had back surgery, he returned from each surgery and continued working until retirement, for a total of at least thirty years as a Manager of the Department. An occupational history lasting over thirty years, after two back surgeries, does not suggest that the Veteran was incapable of fulfilling his job requirements due to his back problems, as claimed by the Veteran's spouse. Thus, unlike the spouse's statement, the employer's statement was not made for pecuniary purposes, and was based on the employer's duty to assess, evaluate, and formally document the Veteran's capabilities of performing his job over the many years of employment with its company. Hence, the spouse's statement is of diminished probative value, because it is outweighed by the detailed facts in the statement provided by the Veteran's employer. Additionally, the Board finds the Veteran's co-worker statements not credible, as they indicated that the Veteran was unable to do the required heavy lifting of an industrial engineer managing a department, however, by the Veteran's own statements, he had a desk job that was sedentary in nature and not strenuous as indicated by his co-workers. Hence, the co-workers statements are at variance with, and are outweighed by, the type of work described by the Veteran to a health care provider in August 2009. See generally Fed.R.Evid 803(4) (Statements made to physicians for purposes of diagnosis and treatment are "exceptionally trustworthy"); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). Finally, the Board finds that the Veteran's longstanding career with the same company, for more than thirty years despite multiple back surgeries, indicates that the Veteran was capable of performing his duties and responsibilities, and does not provide evidence that he was unable to secure or follow a substantially gainful occupation by reason of his back disability. Considering the foregoing, the Board finds that, prior to March 4, 2009, the Veteran was not shown to have met the requirements for a TDIU pursuant to 38 C.F.R. § 4.16(b) because the evidence does not show that it was at least as likely as not that he was unable to secure or follow a substantially gainful occupation by reason of his service- connected disabilities. The Board therefore finds that prior to March 4, 2009 the preponderance of the evidence is against the assignment of TDIU. In summary, the Veteran was not unemployable due solely to service-connected disabilities, prior to March 4, 2009. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107. ORDER Entitlement to TDIU prior to March 4, 2009, pursuant to 38 C.F.R. § 4.16(b) is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs