Citation Nr: 1334107 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-38 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extra-schedular basis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from March 1963 to March 1966. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his November 2007 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board, in other words a Travel Board hearing. The RO acknowledged that request and informed him of the date of the scheduled hearing (February 23, 2009) by way of letters dated in December 2007 and January 2009, but on the hearing date he failed to report so was marked as a "no show". Inasmuch as he did not request a postponement of the hearing or provide any good-cause explanation for his absence, the Board deems his hearing request withdrawn. 38 C.F.R. § 20.704(d) (2013). In October 2011, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration, including especially for a medical opinion concerning whether the Veteran's service-connected low back disability precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison, that is, when also considering his level of education, prior work experience and training, but not instead his advancing age and disabilities that are not service connected. And the opinion obtained and rating for this service-connected low back disability, in turn, would determine whether this TDIU claim going forward would be considered under the provisions of 38 C.F.R. § 4.16(a) or (b). FINDING OF FACT 1. The Veteran's low back disorder, which is his only service-connected disability, has been rated as 40-percent disabling effectively since September 1967, although on two occasions prior to that he had temporary 100 percent ratings for this disability, owing to his need to convalesce because of it. 2. There is disagreement over whether this service-connected disability precludes him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. 3. The person most recently asked to comment on this determinative issue, however, a VA compensation examiner no less, concluded this low back disability precludes the Veteran from obtaining and maintaining substantially gainful employment commensurate with his level of education and prior work experience and training. 4. This and the other medical opinions of record favoring this claim are as probative as those against this claim, so it is at least as likely as not the Veteran is unemployable on account of this service-connected disability. 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. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his/her representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his/her representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). When the claim is for service connection, the VCAA notice must apprise the claimant of all five elements of the claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; but also the "downstream" (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This particular claim at issue, however, did not arise in that context. And according to the U. S. Court of Appeals for the Federal Circuit, in a case as here involving a claim for a TDIU, which is derivative of a claim for an increased rating when predicated on the service-connected disability purportedly causing unemployability, the notice described in 38 U.S.C.A. § 5103(a) need not be claimant specific or advise a claimant that, to substantiate his/her claim, he/she must submit medical or lay evidence showing the effect any worsening of the disability has on his/her employment and daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Rather, VA need only provide a claimant generic notice advising him/her of the evidentiary and legal criteria for establishing his/her entitlement to greater compensation. Id. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his/her claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this particular case at hand, the RO/AMC provided the Veteran VCAA notice concerning his claim by way of letters dated in May 2006, July 2006, October 2006, September 2007, January 2008, January 2009 and February 2012. The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law cited above. In the letters, the RO/AMC acknowledged the Veteran's claim, notified him of the evidence needed to substantiate it, and identified the type of evidence that would best do so. Indeed, as the Board instructed in its October 2011 remand of this claim, the RO/AMC specifically informed the Veteran that he should undergo a VA compensation examination as the record then available conflicted as to the effect of his service-connected low back disability on his employability and consequent entitlement to a TDIU. The RO/AMC also apprised him of his and VA's respective responsibilities in obtaining this supporting evidence, notified him of VA's duty to assist him with his claim, and indicated it was developing his claim pursuant to this duty. As well, the RO/AMC identified the evidence it had requested and/or received in support of his claim and the evidence it was responsible for obtaining. The RO/AMC indicated it would make reasonable efforts to assist him in obtaining all outstanding evidence, provided he identified the sources of it. The RO/AMC also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. Also in its October 2011 remand of this claim, the Board provided him further notice by explaining to him that he did not then currently meet the schedular criteria for a TDIU and therefore, to prevail in his claim, he needed evidence establishing that he was incapable of obtaining or retaining substantially gainful employment because of this sole service-connected disability, a lumbar spine disorder. This type of evidence would tend to suggest his entitlement to a TDIU on the alternative extra-schedular basis when considering these special provisions. One specific purpose of the Board's October 2011 remand of this claim was to reconcile the conflicting evidence then of record and obtain a medical opinion on this determinative issue of employability. This additional development was necessary as the Court has pointed out that the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); see, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). Some of the VCAA notice letters were not sent in the preferred sequence, having been provided after, rather than before, initial adjudication of this claim. But the RO/AMC rectified ("cured") this timing defect in the provision of the notices by since readjudicating this claim in a December 2012 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). B. Duty to Assist VA also is to assist a claimant in obtaining evidence necessary to substantiate a claim, such as by obtaining relevant records, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2013). To this end, the RO/AMC attempted to obtain all evidence the Veteran identified as potentially pertinent to his claim, including his service and post-service treatment records and information from past employers. The RO/AMC also, as mentioned, afforded him VA examinations and obtained medical opinions concerning this claim. After he had disputed the adequacy of a July 2008 examination by letter received in March 2009, the RO/AMC afforded him another examination. As well, the RO/AMC then referred this claim to the Director of the Compensation and Pension Service for consideration of whether a TDIU could be assigned on an extra-schedular basis. So given all that has occurred, it is difficult to discern what additional guidance VA could have provided him as to what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand, especially, as here, another remand, would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss in exhaustive detail each and every piece of evidence he has submitted or that someone else has or that VA has obtained on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to the claimant). II. Analysis The Veteran contends he is unemployable on account of his low back disability and therefore entitled to a TDIU. According to a written statement he submitted in April 2006, he has undergone multiple back surgeries, but has not gotten better, experiences constant back pain, has difficulty lifting, standing, sitting or walking for prolonged periods of time, and sleeping with the pain, and has drastically reduced mobility and numbness in his legs, which affect his daily activities. Allegedly, he has lost employment and has difficulty obtaining gainful employment (no employer is willing to hire him) because of his disabling back condition. By written statement dated in May 2006, he reported the same problems as well as difficulty squatting, bending and leaning caused by his service-connected lumbar spine disability and noted that, although this disability had not precluded him from working after the initial surgeries, four of five years prior to 2006, the problems got out of control. He claimed that he was then out of work and required pain medication, sleeping pills and muscle relaxants to function. In another written statement dated in November 2007, he pointed out that, in 1967, after his last operation on the L-4 and L-5 areas of his spine, the RO rated his lumbar spine disability 40-percent disabling. He questions why such disability is still rated as 40-percent disabling when, since the last operation, he has had additional damage to his spine and undergone further procedures on the L-2 and L3 vertebrae of his spine, including a fusion. Allegedly the documents show the 40 percent rating contemplates the more recent procedure. He emphasizes that the fusion has restricted his movement. A total disability evaluation may be assigned where the schedular evaluation is less than total (i.e., less than 100 percent) when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities - provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. Disabilities resulting from common etiology or single accident, or affecting a single bodily system, or both upper or both lower extremities, will be considered as one disability for the above purposes of determining whether the Veteran has sufficient rating. 38 C.F.R. § 4.16(a) (2013). The Veteran fails to satisfy these threshold minimum percentage requirements of § 4.16(a) since he has one service-connected disability - a lumbar spine disability characterized as postoperative residuals of a herniated nucleus pulposus, L3, L4 and L5 - which is rated as 40-percent disabling. Although in years past, including during 1966 and 1967, he was rated temporarily 100 percent disabled to compensate him for convalescence, see 38 C.F.R. § 4.30, the 40 percent rating has been in effect essentially since September 1967. If, as here, a Veteran does not meet these threshold minimum percentage requirements set forth in 38 C.F.R. § 4.16(a), he still may be entitled to a TDIU on an extra-schedular basis, provided he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not assign an extra-schedular rating in the first instance, but must specifically adjudicate whether to refer a case for extra-schedular consideration 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). Under 38 C.F.R. § 4.16(b), the RO or Board should refer to the Director of Compensation and Pension Service or other appropriate authority for extra-schedular consideration all cases where a Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. His or her service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on this issue must be addressed. 38 C.F.R. § 4.16(b). Although 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 Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation that provides an annual income that exceeds 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 v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting 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. Id. 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 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. A Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's 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 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough. A high evaluation in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. See also 38 C.F.R. § 4.1. That said, requiring a Veteran to prove that he is 100 percent or totally unemployable is different than requiring proof that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an 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). The Board acknowledges the Veteran's written statements, but considering them in conjunction with all other evidence of record, including the medical documentation and information, finds that the preponderance of this evidence is against his claim. His lumbar spine disorder, which is his only service-connected disability, does not preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. He therefore does not meet the criteria for a TDIU, irrespective of the rating for this disability. His educational and occupational backgrounds are satisfactory for employment purposes. On his April 2006 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), he did not provide the requested information on his education, including how many years of high school and college he had completed. According to his DD Form 214, however, prior to entering service, he had 13 years of education and had majored in pre-dentistry. According to his VA Form 21-8940, he had last worked full time in March 2006 at Westside Electric, Inc., in sales and repairs. He began working there in May 2002 and earned $5,000 gross monthly. Prior to that, from March 1994 to May 2002, he had worked in sales and repairs at Tampa Armature Works, Inc., earning the same amount of money. Allegedly, he became too disabled to work in February 2006. He claims that he was let go from both positions, the latter because of his disability. He contends that he did not miss any work days, but was unable to perform many required employment tasks involving electrical motor and generator sales. Allegedly he was in constant pain and had reduced mobility. Information from the Veteran's employers does not support this assertion. In a VA Form 21-4192 (Request for Employment Information In Connection With Claim for Disability Benefits) dated in October 2006, a representative from Tampa Armature Works, Inc., confirmed that, due to a medical condition, the Veteran was unable to return to work from medical leave. The employer indicated the Veteran had last worked there on September 4, 2001, but was paid through April 19, 2002. Less than a month later, however, in May 2002, he began working for Westside Electric, Inc. In a VA Form 21-4192 dated in July 2006, a representative from this other company indicated the Veteran had last worked there in March 2006 due to a disagreement with his supervisor regarding policy. The representative also indicated that, at the time of the Veteran's employment, the company made no concessions on his behalf based on disability. Several doctors and others qualified to comment have addressed the Veteran's employability since leaving his last position in March 2006. Just prior to leaving, in February 2006, he had sought treatment for other medical conditions and, during treatment visits, had reported that he had been cutting down a tree with a chainsaw. The examiner noted that, with his bad back, the Veteran should not be doing so. In January 2007, a VA examiner noted the Veteran had retired the previous year, in 2006. The Veteran reported the effect of his back disability on his employment and the examiner confirmed the Veteran's employment was significantly limited by lumbar spine pain. But following a physical evaluation, the VA examiner noted that the Veteran's lumbar spine disability precluded manual labor and physically demanding employment duties, not also sedentary duties, and that it did not limit his daily living activities. In July 2009, another VA examiner found that the Veteran's low back disability had severe effects on his usual daily activities, but no significant effect on his usual occupation. The Board found these opinions inadequate, partly because of their conflict. In an October 2011 remand, it explained that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). It further explained that a more definitive and more recent medical opinion was needed on the determinative issue of whether the Veteran is unemployable on account of his service-connected low back disability. The Board noted that, if the designated VA examiner determined the Veteran is indeed unemployable because of his low back disability, then even barring any increase in the schedular rating for this disability, the claim would have to be referred to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for consideration of whether a TDIU was alternatively warranted on an extra-schedular basis under 38 C.F.R. § 4.16(b). In August 2012, during a third VA examination, the Veteran again reported that he was released from his last job in 2006 because he could not perform his duties. He further reported that he could not walk or move for prolonged periods of time, also could not lift or exercise and had difficulty sleeping. Based on this reported history and a physical evaluation, the VA examiner concluded the Veteran's low back disability precluded him from obtaining and maintaining substantially gainful employment commensurate with his level of education and prior work experience and training. In November 2012, on referral from the RO (per the Board's October 2011 remand instructions), the Director of the C&P Service tasked with determining whether an extra-schedular TDIU may be assigned, also addressed the Veteran's employability. He first noted that the Veteran's last employer did not confirm the Veteran was let go due to disability, but instead noted that he had left due to a disagreement over policy. The Director then noted that the August 2012 VA examiner who had provided a favorable opinion did not express any rationale for his conclusion. The Director characterized the August 2012 opinion as speculative, without supporting clinical data or clear rationale, and thus not probative. Citing the remaining opinions, the Director found there is no evidence that the Veteran is incapable of obtaining and following gainful employment by reason of service-connected disability. He indicated the Veteran is still capable of performing sedentary employment. The Board must respectfully disagree with the VA C&P Director regarding the merits of this claim. Even if indeed true the Veteran did not leave his last job because of his service-connected disability, this is not necessarily tantamount to concluding he is still capable of returning to the workforce now or in the days ahead and obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison, even in a less physically demanding capacity such as a sedentary job. Indeed, even accepting that his prior employment in sales and repairs seemingly was at least partly in an office setting, so itself at least partly of a sedentary nature from all outward appearances, is insufficient to conclude he still has the capability to work in this type environment. The Board remanded this claim precisely to have another VA compensation examiner comment on this determinative issue of unemployability, including to try and reconcile the conflicting other opinions on this issue, and he concluded in the Veteran's favor - ruling out any return to work whatsoever in any meaningful or substantially gainful capacity, that is, which is commensurate with his level of education and prior work experience and training. This examiner, then, not only ruled out physically demanding work, but also sedentary. It therefore would defy logic to continue denying this claim even in light of this favorable opinion obtained on remand. With the benefit of this additional medical opinion, it certainly can be said the medical and other evidence supporting this claim is as probative - meaning competent and credible - as that against it. And in this circumstance the Veteran is given the benefit of the doubt and his claim granted. 38 C.F.R. § 4.3. ORDER A TDIU on an extra-schedular basis is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs