Citation Nr: 1330131 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-27 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to October 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran and his wife testified at a Board hearing at the RO in Denver, Colorado in April 2011. This transcript has been associated with the file. The case was before the Board in June 2011 and May 2013 and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. Most recently the AOJ was instructed to forward the Veteran's claim to the Director of Compensation and Pension Service for an opinion regarding extraschedular consideration. The Director of Compensation and Pension Service provided a concurrence opinion in August 2013 which has been associated with the claims file. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The competent evidence of record does not indicate the Veteran meets the schedular threshold for entitlement to a TDIU and the Director of Compensation and Pension Service has determined he does not meet the extraschedular criteria. CONCLUSION OF LAW The criteria for assignment of a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the February 2006 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki, supra. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA also obtained private treatment records and records from the Social Security Administration (SSA) and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in March 2012 regarding his ability to maintain substantial employment. The Director of Compensation and Pension also provided two opinions concerning this matter. The examiner provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examination report is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Service connection is in effect for a lumbar spine disability, evaluated at 40 percent disabling, tinnitus, hypertension, and peripheral neuropathy of the bilateral lower extremities, all evaluated as 10 percent disabling, for a combined disability rating of 60 percent. Although the Veteran is service-connected for multiple disabilities, with one rated as 40 percent disabling, his combined disability evaluation is less than 70 percent. Accordingly, the Veteran does not meet the schedular criteria for entitlement to a TDIU. A TDIU is only available if the Veteran meets the criteria for an extraschedular total rating. An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. 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 v. Brown, 4 Vet. App. 361, 363 (1993). In the Veteran's original August 2005 claim he stated he could not work due to his PTSD and major depression. See also May 2002 VA treatment record where the Veteran stated he had to stop working due to pain in his foot, lumbar spine, and hip. A March 2005 statement from the Veteran's VA physician stated that the Veteran was unable to obtain and retain employment due to his PTSD and major depression. The Veteran reported that he had to stop working due to pain in his back, hip, and foot. See March 2005 VA treatment record. In a September 2005 VA treatment record the Veteran reported that he stopped working shortly after his second car accident, reportedly due to multiple factors including physical disabilities and problems with a new boss. A May 2006 statement from the Veteran's private physician stated that his lumbar spine disability would progress in severity and frequency of symptoms and additional treatment would be required. The Veteran also submitted a statement in August 2006 that he had been told he was totally and permanently disabled. At his March 2008 VA examination the examiner opined that the Veteran was unemployable in situations requiring lifting, pushing, shoving, prolonged standing, walking, or sitting, as all of these activities worsened his lumbar spine symptoms. He also opined the Veteran's peripheral neuropathy excluded him from employment in situations where there was a hazard to areas characterized as insensitive to pain, pin prick, and light touch. At his April 2011 Board hearing the Veteran testified that he was unable to sit for long periods of time because he had to stand up and stretch out. He also testified that he spent the majority of his day in a recliner at home. At the Veteran's March 2012 VA examination the examiner opined that the Veteran's lumbar spine and tinnitus would not impact his employment function. He only found peripheral neuropathy of the right lower extremity, peripheral neuropathy was absent on the left lower extremity. The Veteran was capable of sedentary work where he could sit for 6-8 hours a day (30 minutes at a time with frequent change in position and standing and stretching twice an hour). The examiner's rationale was that the Veteran could do limited amounts of walking and standing. He could also lift 10-15 pounds short distances and was capable of performing all activities of daily living. An April 2012 VA social worker concluded it was "highly doubtful" that an employer would hire the Veteran because of all of his special restrictions. The Veteran submitted a statement in September 2012 disagreeing with the March 2012 findings. He stated he needed help getting dressed and showering due to his disabilities. He also stated he could only carry 5 pounds, not 10-15. The case was referred to the Director of Compensation and Pension Service (Director) in June 2009 for an analysis on extraschedular evaluations. The Director determined that a claim for TDIU should be denied under 38 C.F.R. § 4.16(b). The Director noted that the Veteran had been involved in two car accidents post service which caused a cervical spine disorder, right acetabular fracture dislocation, left closed femur fracture, right patellar tendon laceration, right cuboid and calcaneal fracture and talo-navicular dislocation. The Veteran was also diagnosed with PTSD and major depression due to post-service car accidents. The Director noted a March 2006 statement from the Veteran's physician indicating he could not work due to his PTSD. Ultimately the Director opined that the Veteran's inability to be gainfully employed was due to his non-service-connected disabilities, including PTSD and numerous orthopedic residuals of post-service car accidents. Entitlement to a TDIU on an extraschedular basis was not warranted. In July 2013 a Decision Review Officer (DRO) prepared an opinion which denied entitlement to a TDIU on an extraschedular basis. The DRO noted extraschedular evaluation was previously denied in September 2009. The DRO noted the findings from the SSA that concluded while the Veteran could not return to his previous position, other jobs exist in significant numbers and therefore he was not disabled by SSA standards. The DRO also noted the Veteran was limited physically, especially by his lumbar spine condition. See August 2005 and July 2006 VA treatment records. The DRO cited to the March 2012 VA examiner's opinion that the Veteran was capable of sedentary employment. Ultimately the DRO found that while there were periods of problems with the Veteran's lumbar spine, his overall disability does not show there would be marked interference with employment. In August 2013 the Director concurred with the July 2013 opinion that the Veteran was not entitled to a TDIU on an extraschedular basis. The Director reiterated that the Veteran's service-connected disabilities alone did not render the Veteran unable to perform substantially gainful employment. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. The VA examiner who addressed the matter determined that although the Veteran would be limited in occupations that required physical labor, the Veteran was capable of sedentary employment where the Veteran could frequently change positions to help with his lumbar spine disability symptoms. Although the Veteran has stated he could not perform his usual employment, he has been found to be qualified for sedentary positions. See also May 2007 SSA administrative decision. In conjunction with medical problems including PTSD, depression, and arthritic conditions other than the lumbar spine, the Veteran's employability may be further impaired. However, non-service-connected disabilities are not for consideration in this analysis. The Veteran believes he cannot work due to his service-connected disabilities. While sympathetic to his concerns, the Board finds the medical findings by the VA examiner and determinations from the Director of Compensation and Pension to be more probative. The opinions reflect a clinical understanding of the Veteran's physical limitations specifically due to only his service-connected disabilities. There is no credible, competent evidence which establishes that the Veteran's service-connected disabilities, acting alone, result in his unemployability. The Veteran does not meet the schedular criteria for a TDIU as his multiple service-connected disabilities do not total at least 70 percent. 38 C.F.R. § 4.16. The claim has been submitted twice for consideration of a TDIU on an extraschedular basis and as discussed, the Director determined it was not warranted. In this case the Board concurs with the finding that a TDIU extraschedular rating is not warranted. For the foregoing reasons, the Board finds that the claim for a TDIU must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to a TDIU, including on an extraschedular basis is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs