Citation Nr: 1333288 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 05-25 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating higher than 20 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had periods of active duty for training (ACDUTRA) in the Army Reserves, including from June to October 1975, from June 16-30, 1979, and from July 12-26, 1980. He appealed to the Board of Veterans' Appeals (Board/BVA) from an October 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2006, in support of his claims, he testified at a hearing at the RO before a local decision review officer (DRO). The Board subsequently issued a decision in November 2009 denying several other claims he also had appealed. But the Board remanded these two remaining claims for further development and consideration. This additional development especially included having him undergo another VA compensation examination to reassess the severity of his low back disability and potential entitlement to a higher rating for it. He had this additional VA compensation examination in April 2010. But after considering the results of it, the Appeals Management Center (AMC) continued to deny these claims in a February 2011 supplemental statement of the case (SSOC) and returned the file to the Board for further appellate consideration. In a May 2011 Report of General Information, the Veteran claimed he did not receive the February 2011 SSOC. And, in a May 2011 remand, the Board determined that February 2011 SSOC was not mailed to his correct address, which was why the U. S. Postal Service had returned it as "undeliverable." Moreover, the file contained an updated address, submitted in May 2010 by the Veteran. Accordingly, another copy of the SSOC was mailed to this new address so as to not violate his procedural due process rights. In a November 2011 decision, the Board denied his claim for a higher rating for his low back disability, but again remanded his derivative claim for a TDIU. The remand instructed the AMC to arrange for another VA compensation examination to assess whether he was unemployable due to his service-connected low back and right knee disabilities. If it was determined he was unemployable, the AMC was instructed to refer his TDIU claim for extra-schedular consideration. He appealed the Board's decision denying a higher rating for his low back disability to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). And in an October 2012 Order, granting a Joint Motion, the Court vacated the Board's decision denying this claim and remanded this claim to the Board for further development and readjudication in compliance with the instructions in the Joint Motion. In a January 2013 SSOC, the AMC continued the denial of the claim for a TDIU, so this other claim also is again before the Board for further appellate consideration. The claim of entitlement to a rating higher than 20 percent for the low back disability must be further developed before being readjudicated, so the Board is again remanding this claim to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. Service connection is in effect for the Veteran's low back disability, which is rated as 20-percent disabling, and for his right knee disability, which is rated as 10-percent disabling; his combined disability rating of 30 percent does not meet the schedular criteria for a TDIU. 2. Nevertheless, considering his past work experience but not his age or non-service-connected disabilities, the evidence is at least in relative equipoise as to whether his service-connected low back and right knee disabilities prevent him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for a TDIU on an extra-schedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.16(a) and (b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA compensation and other benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). But given the favorable disposition of this TDIU claim, the Board need not discuss whether these obligations have been met. II. Analysis It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. While the regulations do not define "substantially gainful employment", VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." See also Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See, too, Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation providing an annual income exceeding the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to the Veteran's earned annual income). In Moore, the Court noted the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment is not considered substantially gainful employment and is 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. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. 38 C.F.R. § 4.18. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from common etiology or single accident or affecting both upper and lower extremities, as examples, will be considered as one collective disability. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the Veteran does not meet these percentage requirements, a total rating nonetheless may be assigned on an extra-schedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities. 38 C.F.R. § 4.16(b). Cases involving Veteran's found to be unemployable due to service-connected disabilities but failing to meet these percentage requirements are to be submitted to the Director of the Compensation and Pension Service for extra-schedular consideration. Id. A Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to his level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough. A high rating in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment. 38 C.F.R. § 4.1. The question is whether he 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 (1993). That said, requiring a Veteran to prove that he is 100-percent or totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of a Veteran's overall employability. A requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). This Veteran's service-connected disabilities are residuals of a lumbar laminectomy at L4-5, currently rated as 20-percent disabling, and residuals of a right knee contusion, status post arthotomy, lateral meniscectomy and arthroscopic surgery, with traumatic arthritis, currently rated as 10-percent disabling. Thus, his overall combined rating for these disabilities is 30 percent. 38 C.F.R. § 4.25. Consequently, his disabilities do not meet the threshold minimum schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). He could still establish his entitlement to this benefit on an extra-schedular basis, however. 38 C.F.R. § 4.16(b). His past employment primarily involved working as a courier. He stopped working in that capacity in March 1991, and he has not had any other job since. He has a high school education with approximately two years of community college training as a welder and auto machinist. At different times, he has reported having to stop working because of worsening low back problems, because he had to stop driving because of his diabetes, dizziness and visual problems, and because of the effects of stress, pain, mental illness and his service-connected physical injuries. During an April 2010 VA lumbar spine examination, the examiner determined it was less likely than not that the Veteran's low back disability would prevent him from doing sedentary, non-physical work. But as that opinion did not also consider the effect of his service-connected right knee disability on his employability, the Board's November 2011 remand instructed the AMC to have the Veteran reexamined for a medical opinion concerning whether he was unemployable due to both the low back and right knee disabilities, that is, if considered in combination. The remand further instructed that if the examiner found that the Veteran was unemployable due to these service-connected disabilities, the case should be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of a TDIU on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16." See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable."). The reexamination occurred in December 2011. The examiner noted that the Veteran's educational activities and work practices had basically involved manual labor; that his low back condition would limit him from lifting any weight over 35 to 40 pounds or standing for extended periods of time; and that he would require a knee with full range of motion and less pain in order to obtain and maintain sustainable employment. Thus, the examiner found that the Veteran's service-connected lumbar intervertebral disc syndrome (i.e., status post L4-5 laminectomy) and right knee arthritis and derangement of the meniscus would preclude him from gainful, sustainable employment commensurate with his level of education and prior work experience. As a result of that December 2011 VA examiner's opinion, and pursuant to the Board's remand directive, the AMC submitted the case to the Compensation and Pension service for extra-schedular consideration under 38 C.F.R. § 4.16(b). In a January 2013 decision by the Compensation and Pension Service, it was found that the evidence showed the Veteran was no longer working as a "carrier (driver)" because he had lost his driver's license due to a non-service-connected seizure disorder and mental disorder; that he had reported his educational level as two years of college; and that he had significant non-service-connected disabilities, including schizophrenia, non-insulin dependent diabetes with diabetic neuropathy of the extremities, history of gastroesophageal reflux syndrome and history of surgery to both wrists. It was also pointed out that the December 2011 VA examination had shown very minimal physical findings (presumably, in comparison, as concerning the service-connected low back and right knee disabilities). Thus, the Compensation and Pension service concluded the evidence as a whole did not support a finding that the Veteran was precluded from all forms of gainful employment solely by reason of his service-connected disabilities. Notably, the December 2011 VA examiner correctly characterized the Veteran's past educational attainment beyond high school as being limited to manual labor type work (i.e., reported by the Veteran as prior community college training as a welder and automotive machinist) and specifically found that he was precluded from continuing to engage in such type work due to his service-connected low back and right knee disabilities. The Compensation and Pension Service did not specifically dispute this finding but, instead, more generally found that he was not precluded from "all forms of gainful employment" as a result of these disabilities, relying in part on a finding that he had completed two years of college and on him having a number of very significant non-service connected disabilities. But as the Board finds no reason to disbelieve his reported educational history, the evidence tends to indicate that his post high school education was limited to training in trades involving significant manual labor and, thus, would not have prepared him for non-physical work. It therefore cannot be said that it is a reasonable expectation that he would be able to obtain and maintain employment in a less physically demanding (i.e., sedentary) environment, if for no other reason than he is ill prepared to work in any such alternative environment or setting. This simply is not commensurate with his prior work experience, training, and even his level of education. Also, while the Compensation and Pension Service was correct in noting that he also has very significant non-service connected disabilities, this does not diminish the VA examiner's finding that the Veteran is nonetheless unemployable in an occupation commensurate with his level of education and past work experience and training, even if only considering his service-connected disabilities. Thus, the Board finds that the VA examiner's opinion is clearly probative. Also, there is no medical opinion of record to the contrary, with the April 2010 VA examiner concluding only that the Veteran was not precluded from non-physical work due to his low back disability, alone, without consideration of the right knee disability that also is service connected and without apparent consideration of his past educational attainment and work experience. It is not entirely clear exactly how much manual labor the Veteran's job as a courier actually entailed. However, the Board finds it generally credible that it did involve some such labor and that he had not previously performed any significant non-physical types of work. Accordingly, the December 2011 VA examiner's opinion is shown to be based on an appropriately accurate history. Even a self-reported history, that is, relying on information the Veteran recounts or provides himself, is sufficient unless it is not credible and, therefore, unreliable, which there is no reason to believe is the situation in this particular instance. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). As pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). For the reasons and bases discussed, the April 2010 VA examiner's opinion does not constitute such unfavorable evidence, whereas the December 2011 VA examiner's opinion, especially in comparison, supports allowance of the claim. Accordingly, the Board finds that a TDIU is warranted on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). ORDER The claim of entitlement to a TDIU is granted on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b), subject to the statutes and regulations governing the payment of VA compensation. REMAND As concerning the Veteran's remaining claim of entitlement to a higher rating for his service-connected low back disability, in the October 2012 Joint Motion the parties found that the report of an April 2010 VA medical examination did not specifically detail the degree of additional range of motion loss due to pain on use or during a flare-up and did not explain why this information could not feasibly be provided. When evaluating joint disabilities that are rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). See, too, Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, not just to those specifically affected by arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code (DC). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. Consequently, the parties found that, on remand, the examiner should provide updated measurements that account for all limitations of motion or function caused by pain or flare-ups in the Veteran's condition. That April 2010 VA examiner did attempt to account for some limitations of motion caused by pain, as he affirmatively found that there was no additional limitation of motion after at least 3 repetitions, except as noted and that there was no painful motion, tenderness, spasm, edema, fatigability, lack of endurance, weakness or instability, except as noted. However, he also concluded that additional limitations due to flare-ups could not be determined without resorting to mere speculation. Given the findings of the Joint Motion, a current VA examination, which addresses the current severity of the Veteran's low back disability, is necessary prior to readjudicating this claim. The examination should specifically provide updated current measurements that account for all limitations of motion or function caused by pain or flare-ups as required by the Joint Motion. The Board sees that a December 2011 VA examination done in conjunction with the Veteran's derivative claim for a TDIU did address limitation of motion and function caused by pain and affirmatively noted that he was not experiencing any flare-ups. Still, though, given that he did affirmatively report flare-ups during the earlier April 2010 VA examination, and given that the Board must consider whether a higher rating is warranted throughout the appeal period, remand is still necessary to assess whether he currently has any such limitations due to pain or flare-ups. If the April 2010 VA examiner is still available, he should conduct the current examination and should also provide a specific explanation as to why, in April 2010, he was unable to determine additional limitations due to flare-ups without resorting to mere speculation. In so doing, he should consider whether the flare-ups as reported by the Veteran would amount to a level of impairment equivalent to limitation of forward flexion to 30 degrees or less (a requirement for assigning the next higher 40 percent rating for the Veteran's low back disability). Accordingly, this claim for a higher rating for the low back disability is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination, preferably to be performed by the April 2010 VA examiner, if available to do this additional evaluation, or if not by someone else with the necessary qualifications, to reassess the severity of the Veteran's service-connected low back disability. The claims file must be made available to the examiner for review of the pertinent history of this disability. All pertinent symptomatology, including lumbosacral spine range of motion and all neurological findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Applications of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. In particular, the examiner should specifically detail any additional range of motion loss due to pain on use, after repetitive motion, or due to flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In commenting on this, the examiner should consider whether any flare-ups as reported by the Veteran amount to a level of impairment equivalent to limitation of forward flexion to 30 degrees or less (a requirement for assigning the next higher 40 percent rating for his low back disability). Additionally, the examiner should review the April 2010 examination report and either provide an opinion on whether there was any additional range of motion loss due to flare-ups or specifically explain why such a determination cannot be made without resorting to mere speculation. As well, the examiner should specify whether there is ankylosis, either favorable or unfavorable. If any of this information cannot be provided without resorting to mere speculation, the examiner should specifically discuss why this is the case. 2. Then readjudicate this claim for a higher rating for the low back disability in light of this and all other additional evidence. If additional compensation for this low back disability is not granted to the Veteran's satisfaction, then send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs