Citation Nr: 1331331 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-28 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which continued a 20 percent disabling rating for the service-connected status post laminectomy of the lumbar spine. The claim for TDIU was raised during the pendency of the appeal and was considered part and parcel of the claim for increase for the lumbar spine. Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The RO ultimately denied the claim for TDIU in a January 2007 rating decision. The Board remanded the claim for TDIU for further development and adjudication in October 2011. In the same decision, the Board denied the claim for increase for the service-connected status post laminectomy of the lumbar spine; consequently, the matter is no longer in appellate status. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include status post laminectomy of the lumbar spine, rated 20 percent disabling, and scar of the lumbar area, rated 10 percent disabling; the combined rating for the service connected disabilities is 30 percent. 2. The Veteran's service-connected disabilities alone do not preclude substantially gainful employment consistent with his educational and occupational background. 3. The Board previously referred the matter to the Director of Compensation and Pension for consideration of an extraschedular rating; the Director found that entitlement to TDIU on an extra-schedular basis was not established. CONCLUSION OF LAW The schedular criteria for TDIU are not met; a TDIU rating is not warranted on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO sent pre-adjudication notice by way of letter dated in October 2006. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (VA and private medical records and Social Security records), provided the Veteran VA examinations, sought an opinion from the Director of Pension and Compensation, and afforded the Veteran the opportunity to give testimony in support of his appeal, which he declined. The Veteran indicated in November 2006 that there were no employment records available to support his claim. See VA Form 21-4138. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and virtual record (including Virtual VA and Veteran's Benefits Management System (VBMS)). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340 , 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) , an extra-schedular rating is for consideration where the Veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341 , 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes initially that the schedular percentage requirements for TDIU under 38 C.F.R. § 4.16(a) are not met. The Veteran's service-connected disabilities include status post laminectomy of the lumbar spine, rated 20 percent disabling, and scar of the lumbar area, rated 10 percent disabling; the combined rating for the service-connected disabilities is 30 percent. Second, regarding potential entitlement to TDIU under 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Veteran contends that his service-connected disabilities prevent him from seeking, gaining, and maintaining meaningful, gainful employment. Specifically, his application for TDIU shows that he stopped working in March 2003 because of his back condition. He was working in produce sales, 40 hours per week from 1996 to March 2003. The Veteran indicated that the company he used to work for was no longer in business so he was unable to get any records from them. He had a high school diploma. The Board finds that the preponderance of the evidence is against a finding that his service-connected disabilities alone preclude substantially gainful employment. The Board previously referred this matter to the Director of Compensation and Pension for consideration of an extraschedular rating. Based on the evidence delineated below, TDIU is not warranted on either a schedular or extraschedular basis. In this regard, during VA examination in June 2005. The Veteran complained of pain in the low back pain. He denied any flare-ups. He walked with a cane and denied the use of a back brace. He indicated that he was able to walk for approximately one block before developing increasing back pain. He reported that he had difficulty driving, grooming, bathing, toileting and dressing himself due to back pain. He informed the examiner that he stopped working in 2003 as a sales representative for the food industry. The examiner's diagnosis was status post laminectomy of the lumbar spine, with no major functional impairment. In his August 2006 VA Form 9, the Veteran claimed that the June 2005 VA examiner never physically examined him and that many symptoms he reported were not included in the report. He also disputed the examiner's reports that he denied periods of flare-ups. He took issue with the examiner's findings that there was no additional limitation of motion or functional impairment. SSA records show the Veteran met the disability insured status requirements in March 2003, when he became unable to work. The primary disability was disorders of the back (discogenic and degenerative) and osteoarthrosis and allied disorders. On SSA examination in August 2005, the Veteran reported a past history of working in construction for thirty six years, and also as a wholesale food truck driver. He indicated that he had last worked in March 2003. On physical examination, he did not use a cane or aid for walking, and he was able to get on and off the table without difficulty. Gait and stance were normal. He was able to tandem walk, heel walk and toe walk without difficulty. On neurologic examination, sensory functions were intact to sharp and dull gross testing; motor examination revealed fair muscle tone without flaccidity, spasticity or paralysis; and reflexes in the lower extremities were normal. The Veteran was found to have decreased and restricted motion due to degenerative arthritis of the spine and osteoarthritis of the knees. VA outpatient treatment records dated between 2004 and 2010 contain complaints of back pain. The Veteran informed treatment providers in April 2010 that he was not able to work because of "health issues." He also stated that "if [he] could work, [he would] be working." The Veteran was also treated for non-service connected disabilities, to include, but not limited to, chronic obstructive pulmonary disease (COPD), knee pain, obesity, and depression. On VA examination in October 2010, the Veteran reported walking with a cane, but denied the use of a brace. He indicated that activities of daily living were limited and that his work was affected. The examiner diagnosed chronic lumbar strain with degenerative disk disease (DDD), status post multiple lower back surgeries. The examiner opined that that the functional affect of the Veteran's lumbar spine disability would make him employable in a sedentary capacity, and thus, would not likely impact his ability to obtain and maintain substantially gainful sedentary employment. In October 2012, an opinion was rendered by the Director of Compensation and pension. The Director noted that the Veteran had not been gainfully employed since 2003 and was in receipt of SSA disability payments, which were based in part on the lumbar spine condition, as well as non-service connected osteoarthritis of the knees and depression. The Director also noted the Veteran had nonservice-connected disabilities to include depression, severe osteoarthritis of the bilateral knees, COPD, coronary artery disease, and hypertension. The Veteran had no surgery or hospitalization for the lumbar spine DDD in the past seven years. The Veteran reported that he last worked in 2003 for a company that no longer was in business and thus, there was no evidence from previous employers supporting his contentions that this lumbar spine DDD prevented him from working or interfered with employment. The Director found that the Veteran's lumbar spine DDD had been causing some functional restrictions that affected his ability to perform physically demanding work, but the evidence did not show that he was unable to follow a substantially gainful occupation due solely to his lumbar spine DDD. The Director highlighted the 2010 VA opinion, which did not find that the Veteran could not work and that SSA disability was based in part on other nonservice-connected disabilities. The Director concluded that entitlement to TDIU on an extra-schedular basis was not established. The overall record does support a finding that the Veteran is totally disabled. However, with regard to the TDIU claim, the Board may only look to the service-connected disabilities. The Board has considered the Veteran's statements and does not doubt his sincerity in believing that he is unable to engage in gainful employment of any type. However, the Board believes that the VA medical opinion that the Veteran's service-connected lumbar spine disability does not limit sedentary employment to be more persuasive. In light of such medical opinion, the Board believes it significant that the Veteran's prior job was sales, which does not appear to involve physically demanding activities, and the Board believes that the Veteran is still capable of sedentary jobs consistent with his level of educational attainment (high school diploma). The Veteran argues that his award of SSA disability benefits should merit the award of TDIU; however, SSA disability awards look to all medically documented disorders, not just the service-connected disabilities. At any rate, the Board is not bound by SSA determinations. Nevertheless, the Board referred the matter for extraschedular consideration, but the Director of Compensation and Pension determined that the evidence did not show that the Veteran was unable to follow a substantially gainful occupation due solely to his lumbar spine DDD. The Director concluded that entitlement to TDIU on an extra-schedular basis was not established. In sum, the minimum percentage requirements for basic eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a) have not been. The evidence (summarized above) does not show impairment due to service connected disability which would preclude sedentary types of employment. The Director of Compensation and Pension found that entitlement to TDIU on an extra-schedular basis was not established. The preponderance of the evidence is against this claim. Therefore, there is no reasonable doubt to be resolved. The appeal in the matter must be denied. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER A TDIU rating is not warranted on a schedular or extraschedular basis. The appeal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs