Citation Nr: 1334175 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06 15-926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to June 24, 2010 on an extra-schedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1961 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from November 2005 and February 2006 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. In May 2006, the Veteran testified before a Decision Review Officer in Phoenix, Arizona. A transcript of that hearing is of record. In September 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in March 2009, June 2010, February 2012, and May 2013. It has now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with its remand. In a September 2013 post-remand brief, the Veteran's accredited representative argued that another remand is warranted because an opinion with regard to TDIU on an extra-schedular basis was provided by the "Chief, Compensation Service," rather than the "Director, Compensation and Pension Service," as directed by the Board in its May 2013 remand. There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. United States v. Chemical Foundation, Inc. 272 U.S. 1, 14-15 (1926), Ashley v. Derwinski, 2 Vet. App. 307 (1992), Mindenhall v. Brown, 7 Vet. App. 271 (1994). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307 (1999). Thus, there is a rebuttable presumption that VA properly discharged its official duties in considering the Veteran's claim on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b). As required by regulation, the case was submitted to the Director of Compensation Service for consideration of an extra-schedular evaluation. The previous practice had been for the Director to respond with a written memorandum; however, the signature from the "Chief" of Compensation Service on the memorandum from the field station shows that the decision was approved by that office, as required by regulation. FINDINGS OF FACT 1. Prior to June 24, 2010, the Veteran did not meet the schedular requirements for TDIU. 2. The most probative evidence of record is against a finding that, prior to June 24, 2010, the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to June 24, 2010 on an extra-schedular basis have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §38 C.F.R. § 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in July 2005, April 2006 and August 2012. The claim was subsequently readjudicated in a January 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has a duty to assist the Veteran in the development of the claim. The claim file includes service treatment records (STRs), VA and private medical records and correspondence, United States Postal Service (USPS) records, and the statements of the Veteran, to include his testimony at a DRO and a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. Examinations were obtained in June 2005, January 2006, and August 2006. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate, as they include clinical examinations and interviews with the Veteran with regard to his symptoms. The reports of the examination contain findings necessary to evaluate the Veteran's employability. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria 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 a 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 disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability, as will disabilities of common etiology. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). 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 any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. 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 disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the medical evidence pertinent to the current claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Initially, the Board notes that the Veteran is in receipt of TDIU from June 24, 2010, when he first met the schedular requirements for TDIU. Thus, the sole issue on appeal is whether the Veteran is entitled to TDIU on an extra-schedular basis prior to June 24, 2010. The Veteran has averred that he had substantial gainful employment at least through 2003. Thus, the Board will focus on the evidence of record from January 2004 through June 2010; however, it will consider pertinent clinical history. The Veteran is service-connected for diabetes mellitus, arthritis of the cervical spine, peripheral neuropathy of the bilateral lower and upper extremities, hypertension, chronic maxillary sinusitis, chronic nonspecific urethritis and prostatitis, arthritis of the right ring finger, and erectile dysfunction. In correspondence received from Dr. J.A. in November 2002, he stated that the Veteran has poorly controlled diabetes mellitus which causes hyperglycemia which "in itself is a cause of dehydration. During the summer months, when outside in the high temperatures, his dehydration significantly increased leading to his disability." He also noted that working indoors prevents exposure to high temperatures. Dr. J.A. stated that the Veteran is "not totally restricted from working out doors but should not be out side when temperatures are in excess of 90 degrees. He has no current limitations on hour to be worked. There are no other physical restrictions." The Board notes that the evidence of record reflects that the Veteran was employed, and living, in Arizona. A July 2004 handwritten note from Dr. J.A. reflects that the Veteran has had "difficult in the past [with] heat exhaustion. It is my opinion that he has to stay out of the heat when temperatures are greater [than] 90 - 100 degrees." A July 30, 2004 "Return to Work - Medical Status Report -Phoenix Health Unit" record signed by Dr. J.A. reflects that the Veteran's restriction was limited to working in temperatures over 90 degrees. Notably, he was not limited in any activities of lifting, carrying, sitting, standing, walking, climbing stairs/ladders, driving, reaching above the shoulders, kneeling, bending/stooping, twisting, pushing/pulling, or simple grasping/fine manipulation. Correspondence from the USPS, to the Veteran, dated in August 2004, reflects that the only restriction on file for the Veteran was "no work in over 90 degree temperature". An September 2004 USPS Committee Information Evaluation Form reflects that the Veteran's medical restriction was that he cannot work in temperatures over 90 degrees. It was further noted that he can "lift most anything he needs." With regard to walking, it was noted that he gets leg cramps in the heat and stops for a few minutes until the cramps ease up but they return. It was noted that the Veteran has no problems walking in the cool environment. It was noted that he can do "most anything as long as it is indoors". With regard to other jobs and type of work (in or outside the USPS) which the Veteran can perform, it was noted that he can do "anything indoors". It was further noted that he was graduating from medical assistant school. It was noted that the post office cannot accommodate the Veteran because he cannot deliver mail due to temperature restrictions. A June 2005 VA examination report reflects that the Veteran works as a mail carrier and that he is limited in his occupation due to heat exhaustion. It was noted that the Veteran reported that he had no difficulty with his occupation because of his diabetes mellitus. It was further noted that there had been no ketoacidosis or hypoglycemia. (With regard to his heat exhaustion, the Board has considered correspondence received from Dr. J.A. in November 2002 that the heat exhaustion is related to diabetes.) In a June 2005 statement, the Veteran asserted that he had difficulty performing his job due to peripheral neuropathy secondary to his diabetes mellitus. He reported that he had told his employer on numerous occasions that he was unable to work due to his diabetes being out of control. A VA Form 21-8940 dated in July 2005 reflects the Veteran's statement that he last worked full time in 2004, that he earned $1,312.21 a month and had earned $46,689 in the last 12 months. He reported that he was pending retirement because of his disability. A pay stub from the 14th pay period of 2005 reflects that the Veteran had earned $26,545 for year. Assuming that there are two pay periods per month, the Veteran earned $26,545 through the month of July 2005. Thus, the Board finds that through July 2005, the Veteran was able to maintain substantial gainful employment. In addition, a USPS Committee Information Evaluation Form reflects that the Veteran was still employed, although on temporary light duty since July 30, 2004. A FERS (Federal Employees Retirement System) form reflects that since July 11, 2002, the Veteran had used 448 hours of annual leave, 460 hours of sick leave, and 638 hours of leave without pay, for a total of 1,546 hours (equivalent to 193 eight hour days). It was further noted that the Veteran had been allowed to "case his mail route daily and then goes home" because he cannot do his street duties when temperatures reach 90 degrees. It was noted that his average time in the office as one and a half to two and a half hours daily. Notably, the only restrictions were with regard to heat. A July 2003 USPS decision on a grievance, reflects that at least 372 hours of six leave were taken between September 21 and December 2002; thus, the record is against a finding that the majority of the sick leave hours were taken during the rating period on appeal. The record does not reflect why the hours were taken. July 2005 correspondence from Dr. P.P. reflects the following: [the Veteran] is a 62 year old male with multiple medical problems. He has osteoarthritis of the cervical and lumbar spine with pain and restricted motion. This illness restricts [the Veteran] from lifting greater than 20 pounds and from climbing, bending, stooping, or crawling. Also, [the Veteran] has Diabetes Mellitus, hypertension, and hyperlipidemia. He is medically advised to follow a strict diet and avoid temperature extremes. An August 2005 OPM Standard Form 3112B reflects the following: Since 7/11/2002 employee during months of April thru September has been unable to perform street duties of his mail routes when outside temperature reaches 90 degrees . His letter carrier position involving 60 percent of his workday is outside. An August 2005 letter from the USPS reflects that the Veteran's request to be reassigned as a processing clerk at the post office was denied due to his unacceptable attendance record. The claims file includes a copy of October 2005 VA correspondence, contained as part of a clinical record. It reflects that the Veteran has osteoarthritis of the cervical and lumbar spine and advanced DDD of the cervical and lumbar spine and should avoid activities of lifting greater than 20 pounds, carrying greater than 15 pounds, walking greater than one block without resting, climbing, bending, stooping, crawling, or other weight bearing exercises. A November 2005 private NCV/EMG report from Dr. K.P. reflects that the Veteran had findings which suggest bilateral ulnar neuropathy at the elbows. A January 2006 VA examination report reflects that the Veteran reported that he retired from the post office because of difficulty with his nonservice-connected back disability. It was noted that his retirement did not involve his service-connected neck disability. It was noted that the Veteran reported a constant dull ache in the cervical region, for which he was not currently taking any medication. He denied the use of a cane, crutches, or a walker. It was further noted that he was able to walk less than one block "but only because of his back. Has nothing to do with his neck." It was also noted that "[i]n all sensory modalities of the lower extremities and not the upper extremities revealed decreased vibratory two -point discrimination light touch vibratory and proprioception, secondary to back problem, unrelated to the cervical spine." A February 2006 VA record reflects that upon diagnostic testing, the Veteran had bilateral tibial motor nerves within the normal range, but bilaterally sural sensory nerves latency which was prolonged abnormally. It was noted that there was evidence of diabetic sensory peripheral neuropathy of both lower extremities, but "so far the motor nerves are still normal." The Veteran testified at the May 2006 DRO hearing that when he was a letter carrier, the post office accommodated his cervical spine disability by providing a platform for him; however, he stated that his cervical spine was one of the reasons he left the postal service. (See DRO hearing transcript, page 3.) The Board finds that this statement that his cervical spine was a reason why he left the post office is less than credible given the USPS documentation and the clinical records which reflect that his physical restriction at the time of his employment was limited to heat. (See November 2002 correspondence from Dr. J.A., July 2004 handwritten note from Dr. J.A., July 2004 Return to Work from Dr. J.A., August 2004 correspondence from USPS, September 2004 USPS Committee Information Evaluation Form, and June 2005 VA examination report.) A June 2006 VA clinical record reflects that the Veteran had complaints of numb hands after going to sleep. His deep tendon reflects were absent in the left triceps and all others were trace. They were absent in the ankles. There were no Babinski reflexes or clonus. An August 29, 2006 VA examination report reflects that the Veteran reported that he worked at the post office until January 2006 when he began having trouble with his legs which consisted of aching and which caused him to retire from the post office. He reported anesthesia of the bottom of the feet, tingling of the toes, cramping of the legs, and weakness of the legs. He was diagnosed with bilateral lower extremity sensory peripheral neuropathy. An August 31, 2006 VA examination report reflects that the Veteran reported that he retired from the post office "because of his diabetes. He stated, "I couldn't work in the heat." He reported that he manages his own personal hygiene and grooming. The Veteran reported that he does "a lot of the meal preparation and chores and errands because his wife works." An August 2007 VA clinical record reflects that the Veteran had bilateral ulnar neuritis. The Veteran reported bilateral forearm and hand numbness as well as thigh tingling. He reported that he had not noticed any power loss of the hand or arm. Upon examination, there was no loss of range of motion of the elbows or the wrists. There was no loss of muscle power to manual test of the elbow or wrist and he had good radial pulse. It was noted that the neuritis was sensory. An October 2007 VA examination report is of record. The examination report is somewhat confusing as it reflects findings of normal sensory function of the upper extremities, and decreased sensory function of the lower extremities; however, it notes that the lower extremities involve the hands and palms. Thus, indicating that the findings have been transposed or incorrectly noted in the report. Therefore, they have less probative value than other clinical findings. The October 2007 examiner opined that the Veteran's bilateral lower extremities neuropathy had a mild effect on chores and recreation, and no effect on shopping, exercise, sports, traveling, feeding, bathing, dressing, toileting, and grooming. He opined that the neuropathy of the upper extremities had no effect on usual daily activities. The Veteran testified at the September 2008 Travel Board hearing that he gets tingling and cramping in the legs and when he tries to walk, he aches and hurts. He estimated that he can walk a "little over a block" before having to stop. The Veteran testified that he retired from the post office due to his diabetes. He reported that he could not do any excessive walking or be outside in excess of 90 degrees.(See Board hearing transcript page 21.) He testified that he retired on January 2, 2006. (See Board hearing transcript page 23.) A January 2010 VA record reflects that the Veteran was recently given braces for his ankles. In an August 2013 memorandum, the Chief of Compensation Service provided an opinion that TDIU on an extraschedular basis was not warranted. The Chief reviewed the claims file, to include VA and private clinical records. The Chief found that "there are no medical opinions either from the veteran's own physicians or VA examiners that support a finding that the Veteran is unemployable prior to June 24, 2010 due to service-connected disabilities. The Veteran has not been hospitalized for any extended periods of time due to his service-connected disabilities. The totality of the evidence does not show that the Veteran was unemployable in all environments prior to June 24, 2010 solely due to service-connected disabilities." The Board has considered the clinical evidence of record, as well as the Veteran's statements. A lay statement is competent to establish the presence of observable symptomatology. In addition, the Veteran has had some training in the medical field. Thus, the Veteran is competent to describe the observable symptomatology that is caused by his service-connected disabilities and to attest to the severity of such, to include feelings of tingling, numbness, and pain. He is also competent to describe his difficulty in obtaining employment; however, the medical evidence of record does not support the Veteran's contention that he was unable to maintain substantial gainful employment, consistent with his experience and education, on account of his service connected disabilities prior to June 2010. Although the Veteran has had some schooling and/or training in the medical field, the Board finds that the clinical records, which are objective, and made by physicians, are more probative than the Veteran's statements as to his employability. In this regard, the Board notes that the Veteran's statements as to unemployability have been made for financial compensation and/or have been inconsistent with his other statements and with clinical records. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). The Board finds it notable that Dr. J.A., the Veteran's private physician, stated in November 2002 that the Veteran was not precluded from working outdoors if the temperature was 90 degrees or less, had no limitations on the hours he could work, and had "no other physical restrictions." In July 2004, Dr. J.A. again noted that the Veteran had difficulty with heat exhaustion, and should stay out of the heat when temperatures are greater than 90 degrees; he did not mention any other disability affecting the Veteran's work. On the July 30, 2004 "Return to Work" report, Dr. J.A. did not check that the Veteran was limited in any activities of lifting, carrying, sitting, standing, walking, climbing stairs/ladders, driving, reaching above the shoulders, kneeling, bending/stooping, twisting, pushing/pulling, or simple grasping/fine manipulation. The Board finds that if the Veteran had restrictions on his employment, due to such disabilities, it would have been reasonable for his physician to have reported such; he did not. Although the Veteran has asserted that the USPS was aware of his cervical spine disability and made allowances for him, the USPS evidence does not support this contention. The July 2004 correspondence from the USPS to the Veteran notes that the only restriction on file for him was his requirement not to work in over 90 degree temperature. In addition, the September 2004 USPS Committee Information Evaluation Form reflects that the Veteran "can lift most anything he needs", can walk in cool weather, and can do "most anything as long as it is indoors." In addition, the January 2006 VA examination report reflects that the Veteran reported that his service-connected neck disability did not have anything to do with his retirement from the post office. As noted above, the Veteran was substantially gainfully employed at least though July 2005. The October 2005 VA record noted above lists some restrictions due to the Veteran's service-connected cervical spine disability and his nonservice-connected lumbar spine disability, but does not reflect that the Veteran was unable to maintain substantial gainful employment. He was able to lift items less than 20 pounds, and was not prevented from performing sedentary work The Board is mindful that in some cases peripheral neuropathy may be so severe as to prevent substantial gainful employment; however, the Board does not find such in this case. The February 2006 VA record reflects that the Veteran's motor nerves were still normal. The June 2006 VA record reflects complaints of numbness of the hands after sleeping, but does not reflect any complaints of numbness which prevented daily activities. Notably, the August 31, 2006 VA examination report reflects that the Veteran reported that he does "a lot of the meal preparation and chores and errands because his wife works"; thus, providing evidence that he is able to do tasks manually with his hands. The August 2007 VA clinical record also notes that the Veteran had no loss of range of motion of the elbow or wrists, had no loss of muscle power, and had only sensory neuritis. The October 2007 examination report reflects mild effects from his peripheral neuropathy. The Veteran is also service-connected for hypertension, chronic maxillary sinusitis, chronic nonspecific urethritis and prostatitis, arthritis of the right ring finger, and erectile dysfunction; however, the evidence of record does not support a finding that these disabilities had an adverse affect on his employment. The Board has considered the education and work history of the Veteran. The record reflects that he has approximately seven years experience as a medic, 14 years experience in telecommunications, and 20 years experience working for the U.S. postal service. He also has schooling and/or training as a medical assistant. The Board has also considered that the Veteran lives in Arizona and is medically precluded from a job which requires work outside in temperatures of 90 degrees or above. However, the evidence is against a finding that he is precluded from working in indoors or outside when the temperature is less than 90 degrees. While, he may be precluded from activities such as excessive walking, heavy lifting, crawling stooping, or bending, he was not precluded by his service-connected disabilities from sedentary work. Due to the nature of the Veteran's case, it was submitted to the Director of Compensation and Pension Service for extraschedular consideration. Such consideration was denied, and the Board finds that the opinion is reasoned, thorough and supported by the record. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to June 24, 2010 on an extra-schedular basis is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs