Citation Nr: 1333325 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-37 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to January 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Chicago, Illinois, Regional Office (RO), of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at an April 2012 Travel Board hearing. The hearing transcript is of record. In September 2012, the Board issued a decision denying the issue of entitlement to a TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a March 2013 Order, the Court vacated this portion of the September 2012 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). In August 2013, after the case was certified on appeal to the Board, the Veteran submitted additional evidence, pertinent to the TDIU claim. However, the Veteran included a waiver of initial RO consideration of the evidence. Furthermore, the RO will have an opportunity to consider this evidence while the appeal is being considered on remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND TDIU is an element of all appeals of an initial or increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. 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, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the Veteran has satisfied each of these requirements. The Veteran's service-connected disabilities are: left foot drop with radiculopathy, evaluated as 30 percent disabling, and a low back disorder, evaluated as 20 percent disabling. His combined rating is 40 percent. The Veteran asserts that he is entitled to TDIU. During his hearing, held in April 2012, he testified that he has not worked since March 2003, and that he had to quit his job due to back pain. The Veteran's former employer submitted a statement in August 2003, indicating that the Veteran had back problems which prevented him from lifting, carrying, and as his back condition worsened, he could no longer stand for long periods of time, as required by his job position. The employer noted further that although the Veteran's duties were changed to accommodate his back problems, he eventually got to the point where he was laying on the floor complaining that he couldn't sit, and as his condition worsened, there was less that he could do physically. Finally, in early March 2003, things changed which caused the duties performed by the Veteran to be eliminated. See August 2003 statement from R.A.M., President of Menotti & Co., Inc. The Veteran's claim (VA Form 21-8940), received in October 2008, shows that the Veteran stated that he had been employed by a telemarketer, 30 to 40 hours per week, from March 2001 to March 2003, by another telemarketer, two hours per week, for the month of August 2004, and for one day by a vendor of pamphlet sales in June 2007. In a recently submitted July 2013 statement, the Veteran reported that his service-connected back disability had worsened. Specifically, he stated that he now requires morphine on a daily basis for back pain; that he was incapacitated due to back pain at least three days a week; that he now requires sleeping pills to sleep more than two to three hours at a time, due to severe back pain; that he can only sit for a maximum of 1-2 hours; that he cannot stand without his walker; that he experiences instability and falling; and that he is unable to bend or twist. He also reported that his activities of daily living are severely affected by his back condition. Specifically, he stated that he requires a stool in the shower so that he is able to transfer from the wheelchair to the shower stool to bathe; he has a government-provided maid come in once a week to clean and wash dishes; he has a meal service provide him with food, as he can only cook some light meals; he can generally only wear pajamas or stretchy pants because it is extremely difficult for him to pull up pants; it sometimes takes him over a half hour to put on socks; he can only wear slip on shoes; he requires the assistance of his sister to do his shopping and any household chores; and he can only get out of the house every few weeks, but with assistance. Furthermore, the Veteran reported that the medication he takes has slowed him down and he is tired all the time, and besides regular monthly doctor's appointments for checkups and medication refills, he is resigned to spending his days lying in bed, even when using the computer. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). A VA examination report, dated in December 2007, shows that the examiner stated that the Veteran's C-file had been reviewed. The report shows that the diagnoses noted moderate spondylosis and spinal stenosis of the lumbar spine, and left lower extremity drop foot and mild atrophy of the lower left extremity. The examiner concluded that there was no effect on the usual occupation or daily activities. A VA spine examination report, dated in October 2011, shows that the examiner stated that the Veteran's C-file had been reviewed. The report shows that the diagnoses noted severe spinal stenosis of the lumbar spine with degenerative disc disease and left lower extremity radiculopathy and weakness. The examiner concluded that there were no effects on the usual occupation or daily activities. He further stated, "In summary, the Veteran is a 63-year-old gentleman. Based on my examination, given the fact that he had multiple issues, I do feel that it would be hard for him to perform any type of significant strenuous activity. I would imagine he is able to sit for at least short periods of time and perform activities such as light desk work." A VA neurological examination report, dated in October 2011, shows that the examiner stated that the Veteran's C-file had been reviewed. The report shows that the diagnoses were degenerative disc disease of the lumbar spine with severe stenosis, and L5-S1 radiculopathy on the left, with no movement of the left foot against gravity. The examiner stated, "Certainly, his significant lumbar stenosis does interfere with his ability to maintain gainful employment, in particular, employment that requires lifting more than 20 pounds or prolonged walking more than 5 minutes. He is able to do sedentary work." A statement from a VA psychologist, dated in April 2012, shows that she reported that the Veteran has major depression and "multiple medical problems including COPD (chronic obstructive pulmonary disease) spinal stenosis (including the cervical area and the lumbar area), lumbar radiculopathy, and neurogenic claudication. He has abnormality of gait, difficulty walking, standing or sitting for any length of time. [The Veteran] also has cocaine and alcohol dep[endence] in full sustained remission. [The Veteran's] depression is also seriously debilitating. In my opinion, [the Veteran] is unable to sustain gainful employment due to his mental and medical illnesses." The Veteran has also recently submitted a July 2013 Vocational Assessment in support of his claim for a TDIU. The Vocational indicated that he had reviewed the medical evidence of record, including VA examination reports conducted in January 2003, August 2003, March 2004, December 2007 and October 2011, as well as the transcript of the Veteran's testimony at his April 2012 Travel Board Hearing and his own personal interview with the Veteran, conducted in June 2013. Based on this evidence, the Vocational Consultant concluded that for the past several years, the Veteran had been essentially confined to a wheelchair and very short ambulation using a cane. He is unable to perform household tasks for which he has hired a maid, and is required to be in a wheelchair even while performing self-grooming or light cooking. He cannot drive and rarely leaves home, other than for medical appointments, which his sister takes him to. The Consultant also noted that the Veteran's last gainful employment ended in March 2003, but he had reduced his hours to 20-25 a week for the prior six months leading up to that time. He concluded that the Veteran's employment essentially ended in March 2003 due mainly to his being unable to concentrate due to pain, instability, inability to be on his feet or sit for prolonged periods of time without pain, and generally pain throughout the day, which caused him to take a multitude of medications. The Consultant also noted that the VA examiners had opined that the Veteran was at best, capable of sedentary work, however; he opined that the fact that the Veteran is taking medications that affect concentration, focus and stamina; the fact that he does not drive and needs to be in a wheelchair the majority of the time; and the fact that he still experiences pain which incapacitates him for most of the day, being in a competitive work environment would be very difficult and unrealistic for the Veteran. The Consultant also noted that the Veteran does not possess the computer skills, education or clerical background needed to be a candidate for office desk jobs. The Consultant ultimately concluded that, due to his functional impairment in occupational and personal situations, the Veteran has been unable to work competitively since at least March 2003. He also specifically opined that, "within a reasonable degree of vocational certainty," the Veteran's lumbosacral spine and left foot drop conditions have resulted in his inability to secure and follow a substantially gainful occupation since at least March 2003. In the Joint Motion granted by the Court, the parties agreed that despite the VA examiners' ultimate conclusions that the Veteran is able to perform desk work, their reports are still potentially supportive of a finding that the Veteran is unable to secure and maintain substantially gainful employment. Furthermore, the Vocational Consultant who submitted the July 2013 Vocational Assessment opined that the Veteran's service-connected disabilities cause him to be unable to secure and maintain substantially gainful employment. The Veteran does not currently meet the percentage requirements for TDIU. 38 C.F.R. § 4.16(a); however, VA policy is to grant TDIU, regardless of the percentages, when service connected disability actually renders a Veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a Veteran is unemployable by reason of service connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA's Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b). (The Board notes that the effect of a service-connected disability appears to be measured differently for purposes of extraschedular evaluation under 38 CFR § 3.321(b)(1) and for purposes of a TDIU claim under 38 CFR § 4.16. Kellar v. Brown, 6 Vet. App. 157, 162 (1994). Specifically, 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular Veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996).) The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The most recent VA examinations in connection with the Veteran's service-connected lumbar spine disability were conducted in October 2011. The evidence of record, discussed above, indicates that the Veteran's disability may have worsened since that examination. See Veteran's July 2013 Affidavit and the July 2013 Vocational Assessment. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's lumbar spine disability. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to evaluate the current severity of his service-connected lumbar spine disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Any indicated studies, including X-ray studies should be performed. In reporting the results of range of motion testing, the examiner should specifically identify the points, if any, at which pain begins. The examiner should determine whether the low back disability is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. The examiner should identify any nerves affected by the lumbar spine disability and severity of that disability. The examiner should also indicate whether there is any form of ankylosis. The examiner should specifically identify the frequency and duration of any periods of bed rest prescribed by a physician. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent),that this service connected disability together with his other service connected disabilities, preclude the Veteran from maintaining employment for which his education and occupational experience would otherwise qualify him. A rationale should be given for this opinion. 2. Then, readjudicate the issue of entitlement to TDIU. If the Veteran does not meet the percentage requirements for TDIU, the claim should be referred to the Director of VA's Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b) (2012). 3. If the benefit sought on appeal is not fully granted, the AOJ should issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. The appellant 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).