Citation Nr: 1333357 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-02 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1976 to October 1979. This matter came to the Board of Veterans' Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in October 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by submitting the claim to the Director, Compensation and Pension Service (as evidenced by the February 2013 RO memorandum that was signed by a representative of the Director on the concurrence line) and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected lumbar spondylosis with degenerative disc disease, degenerative joint disease of the right hip, osteoarthritis of the left hip, and degenerative changes of the pubic symphysis do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria of entitlement to a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in June 2010 and July 2010. The notification specifically addressed the evidence necessary to substantiate an individual unemployability claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA and private treatment records, reviewed Virtual VA and VBMS records, assisted the Veteran in obtaining evidence, afforded the Veteran VA examinations, and obtained an AMC extraschedular consideration letter dated in February 2013 that was approved by the office of Compensation service in June 2013. There is no need for additional development as the Veteran's representative had requested in a September 2013 letter (which indicated a belief that the Compensation and Pension service had not yet reviewed entitlement to an extra-schedular evaluation). The Board notes that the Director's office previously had a policy of issuing a memorandum addressing each claim for an extra-schedular evaluation, however those memorandums have recently been replaced by a field memorandum in which the RO or AMC prepares the memorandum decision and the Compensation Service indicates approval by signature on the last concurrence signature line. That procedure was followed in the present case. In a statement dated in July 2013,the Veteran signed a form indicated that he had no additional evidence to submit and that he requested his case be immediately be forwarded to the Board. All known and available records relevant to the issues 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. Analysis Total disability will be considered to exist 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). Provided that if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the applicable percentage standards provided in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total disability rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection is in effect for lumbar spondylosis with degenerative disc disease (10 percent from July 26, 2000; 20 percent from December 6, 2002; 40 percent from June 26, 2004), degenerative joint disease of the right hip (0 percent from October 16, 1979; 10 percent from April 17, 2002), osteoarthritis of the left hip (10 percent from August 14, 2008), and degenerative changes of the pubic symphysis (0 percent from July 26, 2000). Overall, the Veteran has a combined service-connected disability rating of 50 percent. See 38 C.F.R. § 4.25. Thus, the percentage criteria listed under 38 C.F.R. § 4.16(a) has not been met. Nevertheless, the Board will consider whether the Veteran is unemployable in fact solely by reason of his service-connected disabilities. Review of the evidence shows that the Veteran has a high school education. In a statement received in November 2012, the Veteran stated that he worked as an inventory warehouseman for Memphis Defense Depot from May 1980 to September 1983 and then worked as mail handler for the postal service until October 2009. On a claim received in January 2005, the Veteran stated that in the past decade, his condition had become unbearable forcing him to take unscheduled leave from work. In November 2008 Family Medical Leave Act form, the Veteran reported lumbar spondylosis, degenerative changes in his sacroiliac joint and pubic symphysis. He stated that he had difficulty standing and sitting for a prolonged period of time. A December 2009 VA examination report for right hip shows that the Veteran gave a history stating that he was able to walk less than 15 minutes or 50 feet. He reported flare-ups that occurred daily with prolonged sitting, standing and lifting. He stated that his symptoms affected his daily activities by limiting his ability to walk and stand. It was noted that he retired as a postal worker and he stated that his symptoms affected his job because he was unable to stand and walk to perform his duties. The Veteran submitted various lay statements (received in February 2010) from his coworkers and supervisors, who noted the symptoms of the Veteran's disabilities and absenteeism from work. A May 2010 VA examination noted that the Veteran refused to flex his hips on examination even though he had been sitting on the examination table with the hip flexed at 90 degrees prior to the examination. The examiner noted that the Veteran seemed to be a "symptom magnifier". A July 2010 VA examination report shows that the Veteran reported low back pain that travelled to his lateral right thigh. He had occasional numbness and weakness on that side. A back brace helped him moderately. He also reported groin pain. He said that he was able to walk for 15 minutes or 50 feet. Flare-ups reportedly occurred once a week and may last for up to a week. They were caused by prolonged standing, sitting and lifting. It was noted that he was a mail handler before retiring. After interviewing and examining the Veteran, and after reviewing his claims file, the examiner concluded that the Veteran's pain was somewhat out of proportion to physical findings. He further concluded that the Veteran was unable to perform physical employment, but would be able to perform sedentary employment. The Board notes that the Veteran was granted disability retirement from the postal service as a result of his multiple service-connected orthopedic disabilities. Thus, the Board found that a remand to the Director, Compensation and Pension Service for a determination of entitlement to TDIU on an extraschedular basis was in order. Under new guidelines, the DRO submitted a memo (signed in February 2013) that was approved by signature from Compensation and Pension. It was noted that a VA Form 21-4192 completed and submitted by the Bulk Mail Center shows concessions could not be made for the Veteran's disabilities and the Veteran could not perform the physical requirements of the position. The Veteran was awarded disability retirement and a July 2009 letter indicated that accommodation could not be made because of the severity of his disability. It was further noted in the DRO submitted a memo that reassignment was not possible due to any vacancies in the Veteran's commuting area. Findings on the May 2009 report from Campbell Clinic and May 2010 and July 2010 VA examinations were noted. It was noted that the May 2010 examiner noted mild radiographic severity and it was his opinion that the Veteran was a symptom magnifier. The examiner concluded that no reasonable information could be obtained for the examination. As for the July 2010 VA examiner, it was noted that the Veteran's pain was somewhat out of proportion to physical findings. As noted above, the examiner noted that the Veteran would be able to handle sedentary employment and not physical employment. The memo noted that the Veteran retired due to disability and the physical demands of his employment, but there are no medical opinions showing that the Veteran is incapable of sedentary employment. Although the Veteran's service-connected disabilities do place some restrictions on the types of employment he may be capable of (those that require lifting and standing and sitting for prolonged periods), the evidence does not show impairment due to service-connected disability which would preclude sedentary types of employment as the Veteran had earned a high school diploma. The VA medical opinion that is based on interview and examination of the Veteran and review of his claims file weighs against the Veteran's claim; and there are no medical opinions to the contrary. The February 2013 DRO finding and concurrence from the Compensation Service do not support the Veteran's claim. The information from the Veteran's former employer reflects that his prior employment was a physically demanding position involving "loading and unloading bulk mail" and pushing and pulling equipment," and that the Veteran had difficulty performing the physical requirements of the position. The Board notes that the documents from the postal service do not suggest that the Veteran would not be considered to be capable of doing less strenuous sedentary employment. Thus, the disability retirement from the postal service does not support a conclusion that the Veteran is unemployable. The Board has considered the statements of the Veteran and his friends and supervisors, and the Board does not doubt that the Veteran's overall medical condition results in some impairment. While the Veteran and his acquaintances are competent to describe the Veteran's symptoms, they are not competent to render a medical opinion regarding unemployability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the most current VA examiner's observation that the pain reported does not comport with findings weighs against the credibility of his statements about his limitations when it comes to employment. In summary, the Board finds that the Veteran's service-connected lumbar spondylosis with degenerative disc disease, degenerative joint disease of the right hip, osteoarthritis of the left hip, and degenerative changes of the pubic symphysis do not preclude substantially gainful employment. The criteria of entitlement to a total rating based on individual unemployability due to service-connected disabilities have not been met. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs