Citation Nr: 1329677 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-34 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from May 1977 to May 2003. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue on appeal was remanded by the Board, along with other issues, in December 2011 and December 2012 for additional development. A VA evaluation was conducted in April 2013. In June 2013, the Board denied an evaluation in excess of 20 percent for degenerative joint disease of the thoracolumbar spine, an evaluation in excess of 10 percent for retropatellar pain syndrome of the left knee with patellar tendonitis, and an evaluation in excess of 10 percent for retropatellar pain syndrome of the right knee with patellar tendonitis; this decision also remanded the issue currently on appeal to the RO for an addendum to the April 2013 VA evaluation report on whether all of the Veteran's service-connected disabilities precluded substantially gainful employment. An addendum to the April 2013 evaluation, which addressed all of the Veteran's service-connected disabilities, was obtained in July 2013 and added to the claims files. Consequently, there has been substantial compliance with the June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.655, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5106 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. § 3.159 (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in April 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to TDIU. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. In compliance with the duty to notify, the Veteran was informed in the April 2008 letter of the criteria for assignment of an effective date in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence of record includes VA and private treatment records, VA examination reports, a RO hearing, and statements on appeal. There is no indication that there is outstanding available evidence that is pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159, see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). There are several VA examination reports on file, and a relevant physician's opinion on the Veteran's employability was obtained in July 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims files and physical examination findings. The opinion considered all of the pertinent evidence of record at the time, to include the Veteran's medical records and statements, and provides a rationale for the opinion stated. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his February 2011 RO hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from The Texas Veterans Commission. The representative and the DRO asked questions to draw out the current state of the Veteran's disabilities. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for a TDIU. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks a TDIU rating because his service- connected disabilities make it difficult for him to use his upper and lower extremities as required in a work setting. Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of determining whether one 60 percent disability or one 40 percent disability exists, the following are considered one disability: 1) disabilities of both upper or lower extremities, including the application of the bilateral factor; 2) disabilities from a common etiology or a single accident; 3) disabilities affecting a single body system; 4) multiple injuries incurred in action; or 5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran is currently assigned 20 percent ratings for disabilities of the right ankle, thoracolumbar spine, and cervical spine; he is assigned 10 percent ratings for disabilities of the left ankle, each shoulder, and each knee, as well as for hypertension and tinnitus. He is assigned noncompensable evaluations for disabilities of the wrists and eyes, as well as for scars of the left lower lip, right ankle, and back. The combined rating for the Veteran's service-connected disorders is 80 percent, with a bilateral factor of 5.3 percent. Because the combined disabilities of the musculoskeletal system are at least 40 percent disabling, and his total combined rating is more than 70 percent disabling, the Veteran meets the schedular criteria listed in 4.16(a). He indicated in his April 2008 TDIU claim that he had completed four years of college and had last worked full time in May 2003. He subsequently worked part time as a bus driver. Darnall Army Medical Center treatment records for March 2008 reveal normal knee movement, bilaterally. X-rays of the right knee showed osteoarthritic change. An MRI of the right knee in April 2008 showed osteoarthritis, with a possible meniscus tear. An MRI of the left knee in May 2008 showed mild degenerative joint disease. An MRI of the lumbar spine in May 2008 showed mild to moderate diffuse spondylosis, with multilevel degenerative facet disease, and mild disc degeneration. The Veteran complained in July 2008 of severe pain in the lower back and hip; lower back pain was diagnosed. The Veteran was provided several VA evaluations in October 2008, each of which included a review of the claims files. On spine examination, motion of the low back included flexion from 0 to 70 degrees, extension from 0 to 30 degrees, lateral flexion to each side from 0 to 30 degrees, and bilateral rotation from 0 to 45 degrees. There was pain on forward flexion from 50 to 70 degrees. Repetitive forward flexions progressively decreased range of motion to 50 degrees. The Veteran complained on VA general evaluation in October 2008 of pain in multiple joints. He was noted to be right handed. He did not have any hearing complaints. There were no complications from the Veteran's hypertension, which had no effect on his daily activities. It was noted that the Veteran did not have any complaints due to his service- connected scar residuals; the scars did not impair his daily activities. Motion of the cervical spine included 30 degrees of flexion, 55 degrees of extension, 45 degrees of lateral bending to either side, and 80 degrees of bilateral rotation. Motion of the shoulders included 130 degrees of active forward flexion and abduction, with passive flexion and abduction of 180 degrees; internal rotation of 90 degrees; and external rotation, extension, and adduction of 50 degrees. There was no shoulder instability or deformity. Repetitive active abductions did not decrease range of motion or bilateral shoulder function. Left wrist range of motion was noted to be normal and asymptomatic. Motion of the ankles included bilateral dorsiflexion to 20 degrees, plantar flexion to 20 degrees on the right and to 45 degrees on the left, inversion of the left ankle to 30 degrees, and eversion of the left ankle to 20 degrees; there was no inversion or eversion of the right ankle. Both ankles had normal strength. It was noted that the Veteran was able to walk on his toes and heels with some difficulty due to deconditioning. Repetitive bilateral foot rocking did not decrease range of motion or function. The diagnoses in October 2008 were retropetallar pain syndrome of the knees; impingement syndrome of the shoulders, with right acromioclavicular joint separation; mild degenerative joint disease of the lumbosacral and thoracic spine; degenerative joint disease of the ankles with status post fusion of the right ankle and gout of each 1st metatarsophalangeal joint; right wrist strain; hypertension; laceration scar of the left lower lip; excision scar of the mid back; scar from right ankle fusion; and no hip pathology found. It was noted that the Veteran was able to hold occupations there were sedentary or involved mild to moderate physical activities, except for overhead activities, climbing, squatting, jumping, and running. The Veteran complained on VA eye evaluation in October 2008 of blurred vision and occipital headaches when watching television. Visual acuity was corrected to 20/20 for near and far vision in the right eye and for near vision in the left eye; far vision in the left eye was corrected to 20/20- 2. The diagnoses were bilateral pingueculae; regular astigmatism in both eyes; dry eye symptoms; and corneal abrasion in the left eye, most likely secondary to rubbing with anesthetic drops in his eyes. According to a December 2008 medical report from R. H. Lewis, M.D., the Veteran complained of severe left knee pain. The diagnoses were left knee acute inflammation and left knee osteoarthritis. An MRI of the lumbar spine in September 2009 showed diffuse spondylosis with bilateral degenerative joint disease and multilevel degenerative disc disease. A December 2009 report from Central Texas Sport and Spine reveals that the Veteran was given facet injections at L3-S1 on the left. The Veteran complained on VA spine evaluation in January 2010 of moderate to severe non-radiating back pain. He had not had any incapacitating episodes or acute flare-ups requiring Emergency Room management in the previous year. He used a self-prescribed back brace and took pain medication as needed. It was reported that the Veteran quit working as a bus driver in 2008 because of knee pain; he was otherwise able to operate a motor vehicle. Range of motion included forward flexion from 0 to 80 degrees, backward extension from 0 to 20 degrees, lateral flexion to each side from 0 to 25 degrees, and bilateral rotation from 0 to 25 degrees. All motion was accompanied by moderate discomfort. There was objective evidence of painful motion without acute muscle spasm, weakness, atrophy, or guarding. Motor and sensory evaluations were normal. There was no additional limitation after repetitive testing. The diagnosis was degenerative joint disease and degenerative disc disease of the lumbosacral spine with residuals. The Veteran complained on VA joint evaluation in January 2010 of aching, stiffness, swelling, and pain in both knees on a daily basis, for which he took medication as needed. He had not had any incapacitating flare-ups in the past year. He wore a left knee brace. Range of motion of the knees was from 0 to 140 degrees. There was no additional functional loss after repetitive motion. There was no functional limitation on standing and walking. There was no evidence of heat, redness, or swelling of either knee; there was mild discomfort along the medial tibial plateau. Lachman's test and McMurray's sign were negative. The diagnosis was retropatellar pain syndrome of the knees with mild early osteoarthritis. The Veteran testified at his RO hearing in February 2011 that he had bilateral knee pain and that his knees felt like they were giving way. He testified that his thoracolumbar spine disability had increased in severity since the previous VA evaluation. The Veteran complained on VA evaluation in March 2011 that his bilateral knee condition had gotten worse over the past year, especially on the left. He had had steroid injections. His condition was helped by taking weight off of his knees and by taking Percocet. He said that it felt like his left knee might give way, although he had not fallen. Range of motion of the knees was from 0 to 130 on the right and from 0 to 100 on the left. There was guarding of movement and indications of pain on movement. The Veteran had a normal gait, and there was no loss of function after repetitive movement. The bilateral knee condition did not cause impairment of health. The diagnosis was retropatellar pain syndrome, degenerative joint disease, of both knees. The Veteran complained on VA evaluation in March 2011 that his thoracolumbar spine disability had gotten worse over the past year. Range of motion included forward flexion from 0 to 60 degrees, backward extension from 0 to 30 degrees, lateral flexion to each side from 0 to 30 degrees, and bilateral rotation from 0 to 30 degrees. Repetitive motion did not decrease range of motion or function. There was weakness but no spasm. Decreased lumbar lordosis was noted. The diagnoses were degenerative joint disease and degenerative disc disease of the thoracolumbar spine. According to Darnall Army Hospital records for November 2011, the Veteran's knees had good range of motion. According to a February 2012 VA Formal Finding of Unavailability, disability records from the Social Security Administration had been destroyed and were unavailable. VA treatment records for December 2012 reveal back pain to the touch in the lumbar and paralumbar areas; the assessment was worsening of low back pain with muscle spasm on the right. The Veteran complained on VA spine evaluation in April 2013 of right-sided pain/spasm, which was helped by medication. The Veteran said that he last worked as a part-time bus driver but was let go because he was taking Percocet; he indicated that he rarely took this drug currently. Pain- free range of motion of the low back included forward flexion from 0 to 75 degrees, backward extension from 0 to 10 degrees, lateral flexion from 0 to 20 degrees on the right and from 0 to 30 degrees or more on the left, and bilateral rotation from 0 to 20 degrees. There was no additional loss of motion after repetitive testing. He had guarding and/or muscle spasm. Strength and sensation were normal. The examiner concluded that the Veteran's low back condition did not impact his ability to work. With respect to unemployability, it was noted that the Veteran could function in an occupational environment as long as there was no lifting over 25 pounds and no repetitive lifting of 15-25 pounds more than six times per hour; no climbing ladders, operating a forklift or machinery; no repetitive back bending task more than six times per hour; no prolonged standing or walking, with no more than 15 minutes total of combined standing or walking per hour; and no more than 30 minutes an hour of keyboard work. Degenerative joint disease and degenerative disc disease were diagnosed. The Veteran complained on VA knee evaluation in April 2013 of flare-ups of knee pain. Physical examination revealed pain-free motion from 0 to 125 degrees bilaterally. There was tenderness to palpation on the right. He occasionally used a knee brace. There was no loss of lower extremity strength, no instability, and no functional loss after repetitive motion. The examiner noted that the bilateral knee disorder did not impact the Veteran's ability to work. The impression was mild degenerative joint disease. According to a July 2013 report in response to the Board's June 2013 remand by the VA examiner who evaluated the Veteran in April 2013, it was less likely as not that the Veteran's service-connected disabilities would cause him to be unemployable, as he could do sedentary work based on his conditions, as long as it did not involve prolonged sitting, standing, walking, or lifting of more than 25 pounds. His spine had no effect on his usual daily activities. The examiner addressed each of the Veteran's service-connected disabilities, indicating that each would not hinder him from employment. For the Veteran to prevail on his claim for TDIU, the record must reflect that he is precluded from engaging in substantially gainful employment consistent with his education and occupational experience. The evidence indicates that the Veteran has graduated from college and has most recently worked as a bus driver. 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. See Van Hoose, 4 Vet. App. at 363. Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board concludes that while the Veteran's service- connected disabilities may have posed difficulties in obtaining or maintaining employment, as indicated by the assigned disability ratings, they are not shown to preclude employment consistent with his education and occupational experience. The Board considered that the Veteran has multiple service-connected disabilities that could potentially affect his ability to perform work activities. However, the evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unemployable. It was noted on VA evaluations in January 2010, March 2011, and April 2013 that there was no additional limitation of motion of the back or lower extremities on repetitive testing. Moreover, the evidence does not contain evidence of incapacitating episodes due to service-connected disability. Although the Veteran has indicated that he stopped working in 2008 because of his knees, there was pain-free flexion of the back to 75 degrees and pain-free motion of the knees to 125 degrees on examination in April 2013. There was no loss of strength in the back or lower extremities. It was noted in October 2008 that the Veteran was able to be employed at occupations that involved sedentary or mild to moderate physical activities, except for employment that involved overhead activities, climbing, squatting, jumping, and running. It was concluded by the VA examiner who evaluated the Veteran in April 2013 that while there were limitations on the Veteran's ability to work because of his service- connected musculoskeletal disabilities, which meant that he should avoid occupations that required prolonged sitting, standing, or walking or that required lifting of over 25 pounds, his service-connected disabilities as a whole did not preclude substantially gainful employment in keeping with his educational background and work experience. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against entitlement to TDIU. As such, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, a TDIU is not warranted. ORDER Entitlement to a TDIU is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs