Citation Nr: 1334468	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  08-15 803	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) prior to January 23, 2007.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel

INTRODUCTION

The Veteran served on active duty from July 1966 to February 1967.

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In March 2013, the Board most recently remanded the above claim for additional development.  

As explained in the March 2013 Remand, the Veteran's claim for higher evaluations for his service connected low back disability, and by analogy his claim for a TDIU, has been pending since July 20, 2005.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  However, the November 2012 rating decision that granting a TDIU did so effective from January 23, 2007  Therefore, the Board found that the issue of whether the Veteran is entitled to a TDIU prior to January 23, 2007, is still in appellate status.  

In March 2010, the Veteran testified at a hearing before the undersigned at the RO.  A transcript of that hearing has been attached to the virtual VA claims file.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

Prior to January 23, 2007, the Veteran was service-connected for a low back disability, rated as 10 percent disabling from July 20, 2005; right leg radiculopathy, rated 20 percent disabling from July 20, 2005; and left leg radiculopathy, rated 10 percent disabling from July 20, 2005, and his service-connected disabilities did not preclude him from securing and maintaining substantially gainful employment of a sedentary nature.


CONCLUSION OF LAW

Prior to January 23, 2007, the criteria for a TDIU were not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 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, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. § 5103(a).  

The Board notes that the Veteran is challenging the initial effective date assigned following the grant of the TDIU.  In Dingess, the Court also held that in cases where a benefit has been granted and an initial effective date assigned, the claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id, at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the March 2010 Board personal hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim for a TDIU prior to January 23, 2007.  The Veteran was assisted at the hearing by his accredited representative and his representative and the VLJ asked questions to draw out the severity of the appellant's service connected disabilities.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran through his testimony, demonstrated that they had actual knowledge of the elements necessary to substantiate the claim.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from the Kansas City VA Medical Center and the Social Security Administration (SSA).

The post-remand record also shows that in August 2013 the Director of Compensation and Pension provided the requested opinion as to whether the Veteran met the criteria for a TDIU prior to January 23, 2007, on an extraschedular basis in substantial compliance with the Board's remand directions.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).  The record also shows that in connection with his underlying claim for an increased rating for a low back disability the Veteran was provided with VA examinations in October 2005, June 2006, March 2008, September 2010, March 2011, and September 2011. 

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's VBMS claims file as well as those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran asserts that was unemployable prior to January 23, 2007, due to his service connected low back disability with lower extremity radiculopathy. 

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.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341. 

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment.  38 C.F.R. § 4.16(a).  All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).  In cases where the schedular criteria are not met, an extraschedular rating is for consideration.  38 C.F.R. § 3.321.

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).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  For the Veteran to prevail on his TDIU claim, it is necessary that the record reflect some factor which takes his case outside the norm of other such Veterans.  38 C.F.R. §§ 4.1, 4.15.  The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough.  The assignment of a rating evaluation is itself recognition of industrial impairment. 

Prior to January 23, 2007, the Veteran was service-connected for a low back disability, rated as 10 percent disabling from July 20, 2005; right leg radiculopathy, rated 20 percent disabling from July 20, 2005; and left leg radiculopathy, rated 10 percent disabling from July 20, 2005, for a total combined evaluation of 40 percent.  Therefore, the Veteran did not meet the minimum schedular threshold requirement (of a combined disability rating of 70 percent or more) to be considered for a TDIU rating prior to January 23, 2007.  38 C.F.R. § 4.16(a).

A TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).  

In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration.  

In this case, the Board remanded the appeal in March 2013 for the RO to submit the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration.  In August 2013, the Director of Compensation and Pension denied the claim for a TDIU on an extra-schedular basis.  Specifically, the Director of Compensation and Pension opined as follows: 

. . . The March 2013 Board of Veterans' Appeal decision remanded this case for a determination as to whether the Veteran is entitled to total disability individual unemployability (TDIU) on an extra-schedular basis prior to January 23, 2007.  

Effective June 6, 2005, the Veteran was awarded Social Security Administration (SSA) disability benefits due disc disease with a secondary diagnosis of affective disorder.  SSA records show the Veteran's last employment was with a lumber company.  In 1993, the Veteran terminated his full-time employment due to osteoarthritis of the neck and lumbar spine pain with radiculopathy to the legs.  

The VA Form 21-8940 stated the Veteran's service-connected back problems prevent him from securing and maintaining gainful employment.  There is no employment history listed.  

The October 2005 spine examination revealed lumbar spine range of motion of: 70 degrees forward flexion; extension to 10 degrees; left and right lateral flexion each to 10 degrees; and right and left lateral rotation each to 15 degrees.  

The June 2006 spine examination revealed that the Veteran reported that he could not perform flexion beyond 90 degrees.  He also reported that he experiences back pain when walking more than a block, bending, stooping, and lifting.  There is also pain when he stands after sitting for a prolonged period.  The examiner stated the Veteran's condition has not improved or worsened since his last examination. 

Title 38 C.F.R. § 4.16(b) provides for a [TDIU] evaluation on an extra-schedular basis for Veterans with service-connected disabilities which are compensated below the minimum level for [TDIU] consideration under § 4.16(a), but still render the Veteran incapable of maintaining gainful employment. 

Although, the Veteran was deemed unemployable under SSA guidelines due to his service-connected back disability, the SSA's decision regarding unemployability is not controlling for VA determinations of unemployability. See Murinscak v. Derwinski, 2 Vet. App. 363 (1992).  Medical evidence shows that the Veteran has the ability to sit without experiencing back pain.  The record does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities.  Entitlement to TDIU on an extra-schedular basis is denied.

Therefore, the Board finds that this question of entitlement to a TDIU under 38 C.F.R. § 4.16(b) is ready for the Board's review.

In this regard, the Board acknowledges that the Veteran exhibits some occupational impairment due to his service-connected low back disability with right and left leg radiculopathy, as evidenced by his combined 40 percent rating.  Moreover, the September 2010 VA examiner opined that the Veteran "has been unable to work since 1993 because of his ongoing back problem" and has been "[u]nable to work after 1993 due to back and currently unable to secure of follow a substantially gainful occupation."

However, on careful review of all evidence, the Board finds that his impairment is adequately reflected in the disability evaluations he currently receives.  The cumulative evidence shows the Veteran's service-connected low back disability with right and left leg radiculopathy, in and of them self, are not shown to preclude employment prior to January 23, 2007.  

As to the September 2010 opinion, the Board does not find it probative evidence as to the Veteran's employability prior to January 23, 2007, because it is not supported by any rational.  See Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  In fact, the Board finds that it is not even supported by the findings at the examination which showed the range of motion of the low back, taking into account his pain, as flexion to 30 degrees, side to side bending to 10 degrees, and rotation to 40 degrees as well as an almost normal neurological finding.  See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence).

Moreover, the Board notes that while pre-January 27, 2007, treatment records document the Veteran's complaints and treatment for his service connected low back disability and right and left leg radiculopathy, nothing in these treatment records or the VA examinations specifically provide a medical opinion as to whether the claimant's service connected disabilities preclude at least sedentary employment prior to January 23, 2007.  

However, the Board notes that a subsequent VA examination provided a medical opinion as to this question.  In this regard, the March 2011 VA examiner opined that, while the Veteran's service connected low back disability and radiculopathy would prevent employment that involved a physically active job, they would nonetheless allow employment at a sedentary job.  

The Board finds the March 2011 VA examiner's opinion the most probative evidence of record because it is supported by both the findings at the examination as well as by citation to relevant evidence found in the record.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position).  

Accordingly, the Board finds that the most probative evidence of record shows that that the Veteran's service-connected low back disability with right and left leg radiculopathy did not preclude sedentary employment prior to January 23, 2007.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . .").

In reaching the conclusion, the Board notes, as did the Director of Compensation and Pension above, that the SSA found him disabled not because of his service connected low back disability with radiculopathy standing alone but instead because of the combined effect of his service connected low back disability with radiculopathy and his non service connected cervical spine and affective (mood) disorder.  

Also as to the Veteran being able to work in a sedentary position prior to January 23, 2007, the Board finds it probative that in the December 1994 SSA Physical Residual Functional Capacity Assessment it was reported that he was considered to be physically able to occasionally lift up to 50 pounds and frequently lift up to 25 pounds, and was unlimited in his ability to push and pull.  He was also considered able to stand and walk (with normal breaks) for a total of about 6 hours in an 8-hour work day and sit for a total of about 6 hours in an 8-hour work day.  This assessment further supports the conclusion that the Veteran was able to work in a sedentary position prior to January 23, 2007.  

Also as to the Veteran being able to work in a sedentary position prior to January 23, 2007, the Board also finds it probative that the appellant in his January 2011 claim for a TDIU reported that he had a GED.  Therefore, the Board finds that he had the needed education to allow him to work in a sedentary position.  

The Board further notes, as did the Director of Compensation and Pension above, that SSA determinations as to employability are not considered binding on VA as SSA subscribes to different statutory and regulatory criteria.  See Collier v. Derwinski, 1 Vet. App. 413 (1991).  

In reaching this conclusion, the Board has not overlooked the lay claims from the Veteran and others regarding the appellant being unable to work because of his service connected low back disability with right and left leg radiculopathy prior to January 23, 2007.  In this regard, the Veteran is credible to report on what he sees and feels and other people are credible to report on what they can see.  See Davidson.  However, the Board finds more probative the medical opinion as to the severity of his disabilities provided by the expert in the December 1994 SSA Physical Residual Functional Capacity Assessment and at the March 2011 VA examination than these lay assertions.  See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches....  As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . .").

While the Board may be sympathetic to the Veteran's physical situation, the Board 
nonetheless finds that the most probative evidence of record does not show that he met the criteria for a TDIU on an on an extra-schedular basis at any time prior to January 23, 2007.  See 38 C.F.R. § 4.16(b); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Therefore, the claim is denied.


ORDER

Entitlement to a TDIU is denied at all times prior to January 23, 2007.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs