Citation Nr: 1330300	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  08-05 741	)	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 (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran had active military service from January 1963 to January 1967, and from September 1967 to August 1983. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas.

In November 2012, the Board remanded the issue on appeal for further development and it has been returned to the Board.  

In January 2011, the Veteran testified at a hearing before an Acting Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript is of record. The Acting Veterans Law Judge who presided at the hearing is no longer with the Board. The VA advised the Veteran of his right to testify at a hearing before a different Veterans Law Judge or Acting Veterans Law Judge. 38 C.F.R. § 20.717 (2012). In a July 2013 statement, the Veteran indicated that he did not wish to appear at another hearing and requested that the Board consider his case based upon the evidence of record.

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records.  In the September 2012 Supplemental Statement of the Case, the RO specifically stated that these records were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. 

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).


FINDING OF FACT

The Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected low back disability. 


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Notify & 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 decision, the Board grants entitlement to a TDIU on an extraschedular basis. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.  

II.  Decision

In order to meet the criteria for an award of a TDIU, there must be impairment so severe that it is impossible to follow a substantially gainful occupation. See 
38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). 

The Veteran currently is service-connected only for a low back disability, evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Thus, his disability evaluation does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a).

Nonetheless, entitlement to a TDIU on an extraschedular basis may be considered by the Director of the Compensation Service (Director) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU, neither nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19.

The Director concluded in May 2013 that the Veteran was not unemployed or unemployable due to his service connected disabilities, and that a TDIU was not warranted under the provisions of 38 C.F.R. § 4.16(b) (2012).  However, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P Services determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009).

Reviewing the evidence of record, in a July 2009 VA medical examination report the Veteran reported being laid off from his job performing administrative work at a customer service call center approximately two years prior to examination. The Veteran indicated that he experienced only intermittent low back pain related to prolonged sitting while he was working. The Veteran stated that he could only stand for an estimated 10 minutes and sit for approximately one-and-a-half to two hours due to his low back disability. The Veteran indicated that he was taking four to six tablets of Vicodin per day with good relief. The Veteran stated that he could not drive or function at a high level due to this medication. Upon examination, the VA examiner noted that the Veteran's low back disability limited forward flexion of the lumbosacral spine to 30 degrees. After reviewing the evidence, the VA examiner wrote that the Veteran could continue to do administrative work as he did at his last job, but would be unable to perform manual labor.

Subsequently, in an April 2011 VA medical examination report, the Veteran reported being unemployed over the previous two years. The Veteran indicated that he was unable to stand in one position or sit for longer than ten minutes at a time. The Veteran indicated that his low back disability symptomatology, to include the narcotics taken for treatment, caused him difficulty in finding any type of work. The Veteran stated that he could drive, but experienced pain after about 10 minutes of sitting behind the steering wheel. The Veteran indicated that he experienced incapacitating flare-ups of back pain approximately four to six times per year, lasting from two to three days per flare-up. The Veteran stated that he was taking acetaminophen with hydrocodone for relief without side effects on a daily basis. The Veteran indicated that took the medication when he could no longer tolerate the pain he was currently experiencing. During the interview, the VA examiner noted that the Veteran's back pain caused him to fidget in his seat. Upon examination, the VA examiner reported that the Veteran's forward flexion of the lumbosacral spine was limited to 40 degrees due to pain. Having reviewed the evidence, the VA examiner wrote that the Veteran's service-connected low back disability was manifested by pain symptomatology of such severity that the Veteran had to move virtually all the time to tolerate it. The VA examiner noted that the Veteran had to take narcotic analgesics on a regular basis to treat his service connection low back disability. Based on this evidence, the VA examiner stated that it would be impossible now for the Veteran to secure gainful sedentary employment. Therefore, the VA examiner found that the Veteran was individually unemployable. 

In May 2013, the Director indicated that he had reviewed the claims file and determined that the evidence did not demonstrate that the Veteran was unable to secure and follow any substantially gainful occupation by reason of his low back disability. The Director stated that the April 2011 VA examiner's opinion, stating that the Veteran's low back disability rendered him unemployable, was not as persuasive as the July 2009 VA examiner's opinion, stating that the Veteran could perform administrative work. 

In explaining this finding, the Director noted that the April 2011 VA medical examination report indicated that the Veteran could drive, but experienced pain after 10 minutes; had demonstrated improvement in his range of motion of the back since the previous examination; experienced some flare-ups; and treated the disability with acetaminophen with hydrocodone without side effects. The Director found that these results were not evidence of an exceptional or unusual disability picture. Moreover, the Director indicated that the Veteran's statements to the April 2011 examiner, indicating that his back disability caused him problems with seeking gainful employment, contradicted the examiner's conclusion that the Veteran was unemployable. The Director further noted that the Veteran's low back disability symptomatology, as reported in the April 2011 VA medical examination report, did not meet the criteria for a 40 percent disability rating under the assigned Diagnostic Code. Therefore, the Director concluded that the evidence did not demonstrate that the Veteran was unable to secure and follow any substantially gainful occupation by reason of his low back disability.

The Board finds that the weight of the evidence indicates that the Veteran is unable to gain or maintain substantial employment due to his low back disability. The April 2011 VA examiner, after interviewing the Veteran, performing a physical examination, and reviewing the claims file, found that the Veteran's low back disability rendered him unemployable. In making this finding, the VA examiner referred to the Veteran's work history, noting that the Veteran had previously worked in sedentary administrative positions. Having reviewed the evidence, the VA examiner concluded that it would be impossible for the Veteran to work in such a position as he could no longer sit for longer than 10 minutes. To emphasize this point, the VA examiner noted that the Veteran was unable to keep from fidgeting while having to sit through the interview portion of the examination due to his disability. As the April 2011 VA examiner's conclusions were based on a review of the Veteran's work history, a thorough examination, and his own objective observations regarding the severity of the Veteran's disability, the Board finds the April 2011 VA medical examination report has great probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records); 38 U.S.C.A. § 5103A(d) ;38 C.F.R. § 3.159(c)(4).

By contrast, in the May 2013 opinion, the Director indicated that the April 2011 VA examiner's opinion, indicating that the Veteran was unemployable, was not as persuasive as the July 2009 VA examiner's opinion, indicating that the Veteran could still perform administrative work. Having reviewed the May 2013 opinion, the Board finds that it has little probative value in this matter for the following reasons. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same); See Anderson, 22 Vet. App. at 429.

In reviewing the two VA medical examination reports mentioned in the May 2013 opinion, the Board notes that the April 2011 VA examiner examined the Veteran nearly two years after the July 2009 VA examiner. At the time of the July 2009 VA medical examination, the Veteran indicated that he had some difficulty sitting due to his low back disability. Based on the Veteran's contemporaneous accounts, a review of the claims file, and his own observations and findings, the July 2009 VA examiner found that the Veteran could still perform administrative work. At the time of the April 2011 VA medical examination, however the Veteran contended that he had experienced a worsening of his low back pain, causing him to be unable to sit for longer than 10 minutes. Based on the Veteran's contemporaneous accounts, a review of the claims file, and his own observations and observations, the VA examiner found that the Veteran was unemployable. In reviewing this evidence, the Board finds that neither of the respective VA examiner's opinions has greater probative value than the other as both were written after thorough reviews of the evidence of record at the time they were written, nearly two years apart. See Prejean, 13 Vet. App. at 448.

In the May 2013 opinion, the Director stated that the Veteran's statements to the April 2011 VA examiner, indicating that he was having difficulty in securing substantially gainful employment, contradicted the VA examiner's finding that the Veteran was totally unemployable. The Board notes that attempts to find work, by themselves, are not evidence of an ability to maintain substantially gainful employment. Moreover, the applicable VA regulations allow for a granting of a TDIU to claimants who are unable to "secure ... a substantially gainful occupation by reason of service-connected disabilities" despite their best efforts to find employment. 38 C.F.R. § 4.16(a). Therefore, the Director was incorrect in stating that the Veteran's attempts to find substantially gainful employment were indicators of employability. 

Moreover, in reviewing the April 2011 VA medical examination report, the Director stated that the Veteran's range of motion of the low back, measured as being limited to 40 degrees of forward flexion due to pain, did not meet the criteria for a 40 percent disability rating under the assigned Diagnostic Code. The Director indicated that this was a sign that the Veteran's disability symptomatology was not of sufficient severity to allow for the granting of a TDIU on an extraschedular basis. The Board notes that, under Diagnostic Code 5237, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. During the April 2011 VA medical examination, the Veteran demonstrated forward flexion of the thoracolumbar spine to 40 degrees and did not demonstrate any symptomatology suggesting ankylosis of the thoracolumbar spine. The April 2011 VA medical examination report findings did not indicate low back disability symptomatology more nearly approximating the criteria for a 40 percent rating under Diagnostic Code 5237. See id. 

However, in the April 2011 VA medical examination report, the VA examiner noted that the Veteran's inability to stand in one position or sit for longer than 10 minutes were the primary reasons he found the Veteran to be unemployable. Although the Director noted the Veteran's April 2011 forward flexion results in the May 2013 opinion, he did not note the April 2011 VA examiner's findings regarding the Veteran's inability to sit for any length of time, except to state that the Veteran could drive for 10 minutes behind the steering wheel before onset of pain. As the Director did not address the basic reason that the April 2011 VA examiner found the Veteran to be unemployable in his opinion, the Board finds that the May 2013 Director's opinion is of little probative value in this matter. See Evans, 12 Vet. App. at 30.

Therefore, the Board finds that the probative evidence of record indicates that the Veteran cannot secure or maintain substantially gainful employment due to his service-connected low back disability. Therefore, resolving all reasonable doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis is granted. Anderson, at 429; 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.16(b).


ORDER

Entitlement to TDIU on an extraschedular basis is granted.



____________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs