Citation Nr: 1329958 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-03 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to an increased rating for lumbar radiculopathy of the left lower extremity, currently rated as 20 percent disabling. 3. Entitlement to an increased rating for lumbar radiculopathy of the right lower extremity, currently rated as 20 percent disabling. 4. Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine, currently rated as 20 percent disabling. 5. Entitlement to a compensable rating for hemorrhoids. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from August 1992 to December 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2010, the Board remanded the claim for entitlement to TDIU for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes this appeal originally included entitlement to service connection for posttraumatic stress disorder (PTSD) and depression; however, entitlement to service connection for PTSD and major depression was granted in a February 2013 rating decision, and as such, is no longer on appeal. The issues of entitlement to an increased ratings for lumbar radiculopathy of the left lower extremity, lumbar radiculopathy of the right lower extremity, degenerative disc disease of the lumbosacral spine, and hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran has at least one disability ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more; these service-connected disabilities preclude the Veteran from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to TDIU The Veteran is seeking a total disability rating based on individual unemployability (TDIU). 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. 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 the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran has multiple service-connected disabilities. The Veteran's posttraumatic stress disorder (PTSD) is rated as 70 percent disabling, her degenerative disc disease of the lumbosacral spine is rated as 20 percent disabling, radiculopathy of the right lower extremity is rated as 20 percent disabling, radiculopathy of the left lower extremity is rated as 20 percent disabling, tinnitus is rated 10 percent disabling, gastroesophageal reflux disease and chronic constipation is rated 10 percent disabling and hemorrhoids are rated as noncompensable. The combined rating for all her service-connected disabilities is 90 percent. See 38 C.F.R. § 4.25, 4.26(b). Therefore, the Veteran is eligible for an individual unemployability rating if she is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals of Veterans Claims (Court) held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. In Hodges v. Brown, 5 Vet. App. 375 (1993), the Court found that although a Veteran could undertake employment despite his service-connected disabilities, he was unemployable because he was unable to secure employment due to his physical disabilities. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). The Board takes judicial notice that this amount was $11,945 (for one person under the age 65) in 2012, which is most recent year for which poverty level data was published. In 2011, it was $11,702 and in 2010, it was $11,344. See Department of Commerce, Bureau of the Census, Poverty Thresholds, http://www.census.gov/hhes/www/poverty/data/threshld/; see also Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (Judicial notice may be appropriate for facts that are "not subject to reasonable dispute."). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). "Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability." 38 C.F.R. § 4.17(a); see also Moyer v. Derwinski, 2 Vet. App. 289, 295 (1992) (applying the definition of "marginal employment" in § 4.17(a), which concerns TDIU pension claims, to TDIU a compensation claim). An "ability to work only a few hours a day or only sporadically," such as maintaining part-time self-employment as a counselor and tutor, is not to be considered an "ability to engage in substantially gainful employment." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). The Veteran submitted her employment information in January 2010. She indicated she was a dental assistant and worked 40 hours per week from June 2005 to January 2010, at which time she became too disabled to work. She stated she had lost over 600 hours of work in the past year due to her service-connected disabilities. In April 2010, she submitted employment information again, at which time she indicated that she was a dental assistant, working eight hours a day, for a total of 40 hours a week. She reported that she earned $32,359.00 during the prior twelve months. In November 2010, she submitted evidence indicating she had used 128 hours of sick leave, 117 hours of annual leave, and 376.9 hours of leave without pay for the prior year. The Veteran was afforded a VA examination in March 2010. It was noted that she had three weeks of physician prescribed bed rest in the prior year due to her back. The examiner noted that the Veteran was working as a dental assistant, but in 2009 she missed 400 hours of work because of back pain and in 2010 she missed three weeks. It was noted that she had difficulty with work because she is a dental hygienist and was having difficulty with prolonged sitting and leaning required for the job. The examiner noted that the Veteran's gastroesophageal reflux disease caused her to sleep with her head elevated, and she experienced chronic constipation. The Veteran reported that she missed two to three weeks of work in the last year related to her chronic constipation and reflux disease. She reported that she has not missed any workdays in the last year due to her hemorrhoids. Examination revealed the Veteran walked with an antalgic gait. Range of motion was limited by pain. The examiner stated that with the Veteran's current work history, it is unclear as to why she would be unable to obtain or maintain gainful employment due to her reflux disease, chronic constipation, or hemorrhoids. Importantly, however, the examiner stated that the Veteran is unable to obtain or maintain gainful employment in her current position as a dental assistant because of her degenerative disk disease in the lumbar spine with bilateral radiculopathy in the lower extremities. More recently, the Veteran was afforded a VA examination for her PTSD in April 2012. After examination, the examiner opined that due to the Veteran's PTSD, she had significant impairment, the majority of which can be attributed to PTSD, although some of the impairment can be attributed to major depression. The Veteran was also afforded a VA examination for her spine in August 2012. After examination, the examiner indicated that the Veteran's spine disability affects her ability to work. The examiner noted that the Veteran has had to decrease her work schedule as a dental assistant from full time to two days per week. It was noted that she is unable to lift or carry anything heavier than her pocketbook, and is unable to sit for more than five to ten minutes at a time due to back pain. Since the Veteran has significantly reduced her work hours, she has missed no work or been prescribed bed rest. The Veteran asserts that her service-connected disabilities, particularly her spine disability and PTSD prevent her from maintaining gainful employment. The Board notes that the Veteran is competent to give evidence about what she experiences; for example, she is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board finds the evidence is at least in equipoise that she is entitled to TDIU. It is noted that the Veteran currently has a combined disability rating of 90 percent and has severe disabilities involving her psychiatric disorder and lumbar spine. Importantly, the March 2010 VA examiner opined that the Veteran's lumbar disability prevents her from maintaining employment. Additionally, the April 2012 and August 2012 VA examiners also have indicated that the Veteran's lumbar spine disability and PTSD affect the Veteran's ability to work and cause a significant impairment. To date, there have been no medical opinions to the contrary. Although the employment information submitted in April 2010 indicates the Veteran exceeds the poverty threshold, the Board finds that the Veteran is currently marginally employed. As stated previously, marginal employment may also be held to exist, on a facts found basis. For example, someone employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability. See 38 C.F.R. § 4.17(a); see also Moyer v. Derwinski, 2 Vet. App. 289, 295 (1992). The evidence indicates that due to her spine disability, the Veteran is unable to lift or carry an item heavier than her purse. See August 2012 VA examination. Furthermore, as she cannot sit for more than five to ten minutes at time due to pain, the Board finds that even sedentary employment would not be possible and therefore her inability to secure or retain better employment than her current two days a week is due to her service-connected disabilities. Considering all evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran is precluded from gainful employment due to her service-connected disabilities. Multiple VA examiners have opined that due to her spine disability and PTSD she is unable to maintain gainful employment. Therefore, considering the severity of the Veteran's disabilities and resolving all doubt in favor of the Veteran, the Board finds the Veteran is entitled to TDIU. ORDER Entitlement to TDIU is granted. REMAND In December 2012, the RO issued a rating decision that granted 20 percent for lumbar radiculopathy of the left lower extremity, 20 percent for lumbar radiculopathy of the right lower extremity, 20 percent for degenerative disc disease of the lumbosacral spine and a noncompensable rating for hemorrhoids. In December 2012, the RO received a statement from the Veteran indicating her disagreement with the decision. A statement of the case (SOC) must be issued on this claim. Manlincon v. West, 12 Vet. App. 238 (1999). Where an SOC has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Id. Accordingly, the case is REMANDED for the following actions: 1. The RO should issue an SOC with respect to the issues of entitlement to increased ratings for lumbar radiculopathy of the left lower extremity, lumbar radiculopathy of the right lower extremity, degenerative disc disease of the lumbosacral spine, and hemorrhoids. 2. The Veteran should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of these issues. The claims file should be returned to the Board for further appellate consideration only if the Veteran files a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs