Citation Nr: 1334693 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-18 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from December 1961 to June 1965 and from July 1966 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to an evaluation for service-connected degenerative arthritis of the lumbosacral spine. The Veteran appealed the denial of an increased rating, and presented evidence that his service-connected degenerative arthritis and service-connected hearing loss may affect his ability to maintain employment. Accordingly, in an April 2011 decision and remand, the Board inferred jurisdiction to consider the Veteran's possible entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Having assumed jurisdiction over the issue of TDIU, the Board remanded the matter in April 2011 for further evidentiary and procedural development. The Board has reviewed the entire claims file and finds that there was substantial compliance with the April 2011 remand; thus the Board may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Acting Veterans Law Judge at a hearing held in Columbia, South Carolina on August 28, 2008. A transcript of the hearing has been associated with the claims file. Consideration of the Veteran's appeal has also included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. Nonetheless, all records within the system have been considered as part of the Veteran's appeal. FINDING OF FACT The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of one or more service-connected disability. CONCLUSION OF LAW The criteria for TDIU have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Here, the RO provided a VCAA notice letter to the Veteran in April 2011 which notified the Veteran of what information and evidence must be submitted to substantiate the claim of TDIU, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and fully described the criteria for award of TDIU. Moreover, in a hearing before the undersigned, the presiding Veterans Law Judge helped to identify potentially relevant additional evidence that the Veteran may submit in support of his claim. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Here, service records have been obtained, as have records of private and VA treatment, as well as records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran was afforded VA examinations in February 2006, May 2010, September 2011, and October 2011. During these examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions that are consistent with the record. The Board notes that the February 2006 VA examiner was not provided the Veteran's claims file for review. Nonetheless, an accurate history was elicited from the Veteran regarding his service-connected spine disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record, including testimony provided at the August 2008 hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed 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 these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Entitlement to TDIU A total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2013). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). During the period on appeal, service connection has been established for degenerative arthritis of the lumbosacral spine and a 20 percent rating has been awarded effective May 1, 2010, prior to which the disability was rated as 10 percent disabling; service connection for tinnitus has been established, with a 10 percent rating effective October 31, 2003; right S1 radiculopathy has been 10 percent disabling effective May 24, 2010; and service connection for bilateral hearing loss has been established with a noncompensable rating. The Veteran has not met the schedular criteria for the grant of TDIU at any time during the period on appeal. Specifically, at no time has any disability been rated at 40 percent or more. See 38 C.F.R. § 4.16(a). Nonetheless, because 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, the Board must consider whether to submit the Veteran's claim to the Director of VA Compensation and Pension Service for extra-schedular consideration if the Veteran is otherwise unemployable. 38 C.F.R. §4.16(b). In a January 2006 questionnaire completed by the Veteran in pursuit of benefits from the Social Security Administration (SSA), the Veteran indicated his belief that arthritis and an "irregular heart" were the disorders which limited is ability to work. He went on to state that he had "terrible pain in [his] hands, joints, hips, back, etc.," and that he could not "grip things any more [sic]." The Veteran also indicated that his disabilities rendered him unable to work beginning in October 2005. In a subsequent, August 2006, disability report to SSA, the Veteran endorsed additional symptoms including numbness in the lower back, hips, and buttocks area after standing or walking "for any length of time." On VA examination in February 2006, the Veteran endorsed a reduced level of activities in which he could engage due to pain across the lower lumbar spine. The Veteran had experienced minimal relief using Naprosyn or Tylenol. Numbness in the back was exacerbated by prolonged standing, including during activities such as grocery shopping. At the time of the examination, the Veteran indicated that he was not employed, but had previously been employed as a purchasing agent. The Veteran reported that he had retired secondary to low back pain and multiple musculoskeletal complaints. The examiner noted that the Veteran demonstrated no difficulty dressing himself or putting on shoes and socks. March 2006 letters from former coworkers of the Veteran's indicated that the arthritis and pain had caused a reduced level of performance. Many routine tasks "became extremely difficult for him, some, he could no longer do." One former coworker reported that the Veteran had not wanted to retire, but "felt he should because he was unable to give 100% in the performance of his job." A July 2006 letter from a private care physician indicated that the physician had been treating the Veteran's severe osteoarthritis of the hands, lumbar spine, and shoulders, and that the Veteran had become recalcitrant to analgesics and injections. The Veteran's activities of daily living were reportedly severely limited due to "this debilitating disease." In an August 2006 statement to SSA, the Veteran indicated that because he does not have computer skills, and had never had computer training, he felt that it would be "extremely difficult for [the Veteran] to find employment other than manual labor." An examination conducted for SSA disability purposes in September 2006, reflected the Veteran's endorsement of pain in all joints, and numbness in the feet at time. The Veteran's ambulation was slow and effected, and pain was identified in the low back, hips, and hands. An October SSA disability determination found that the Veteran became disabled for SSA purposes in October 2005, due primarily to "osteoarthrosis and allied disorders." The secondary diagnosis was of "disorders of back (discogenic and degenerative)." An accompanying statement from the SSA disability examiner noted the Veteran's long history of osteoarthritis not only of the back, but also the hands and shoulders. During the August 2008 hearing before the undersigned, the Veteran indicated that when he was still working, he was unable to complete his duties, and did not want to stay in the position and have "other people have to carry" him. On VA examination in May 2010, the Veteran complained of pain at a level of 2 out of 10, but which became aggravated with bending, stooping, and lifting. Pain affected the Veteran's ability to get up and down out of his chair when working, and he could no longer do any lifting at work. In terms of activities of daily living, the Veteran reported that he could no longer do yard work, and regular household chores were limited due to back pain. In September 2011 the Veteran underwent a VA examination during which he endorsed a 25 year history working as a purchasing agent for a cleaning system company before retiring at the age of 62. The Veteran reported pain in the lumbar area, fluctuating in intensity. The Veteran reported being able to walk between a quarter of a mile and a half of a mile. There was also significant knee pain which the examiner opined likely inhibited the Veteran's ambulation more than back symptomatology. Nonservice-connected neck pain was also endorsed. Following a physical examination, the examiner diagnosed degenerative joint disease of the lumbar spine without objective signs of S1 radiculopathy. The examiner concluded that the Veteran's diagnosed degenerative joint disease of the lumbar spine with minimal right-side S1 radiculopathy did not impair the Veteran's ability for employment either of a physical or sedentary nature. While the Veteran does have mild degenerative joint disease, the examiner noted that the Veteran retired voluntarily after 25 years of work. Furthermore, the examiner noted, the Veteran has multiple other osteoarthritic problems which "limit him much more severely than his back would." On VA examination in October 2011, the Veteran's hearing loss and tinnitus were evaluated. Following diagnostic testing which showed, among other findings, that the Veteran had between 92 and 80 percent word recognition performance, the examiner recognized that the Veteran's sensorineural hearing loss and tinnitus would have significant effects on occupation. Nonetheless, the examiner concluded that the Veteran's hearing loss and tinnitus would not prohibit his employment. In so concluding, the examiner noted that individuals with profound hearing impairment, including those considered deaf, function well in a variety of occupations. The examiner recognized that the Veteran's hearing loss may make a job more challenging in some settings - such as critical listening situations, working in background noise where communication is expected, or having to listen to certain tones/signals in the range of the hearing loss - but would not preclude employment. It was noted that there are many careers in which hearing loss would not be a factor - and while tinnitus may be annoying and distracting at times, it has not been found to prohibit successful employment in most areas of employment. Based on the foregoing, the Board concludes that the Veteran service-connected disabilities do not render him unemployable, and thus referral to the Director of VA Compensation and Pension Service for extra-schedular consideration, pursuant to 38 C.F.R. §4.16(b), is not warranted. The Veteran has contended, primarily, that his low back pain precludes him from pursuing gainful employment. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Here, to the extent that the Veteran's low back and auditory disabilities are capable of lay observation; his endorsements of symptomatology are competent. However, a layperson is not competent to provide evidence as to more complex medical questions, see 38 C.F.R. § 3.159(a)(2), and determining the functional and occupational impact of the Veteran's service-connected disabilities is beyond the Veteran's lay competence. This is especially true in the Veteran's case where other overlapping symptomatology, including arthritic pain in the hands, neck, shoulder, and knee, also bare on the Veteran's occupational capacity. Here, the Board finds the opinions of the 2011 VA examiners exceptionally probative that the Veteran's service-connected disabilities alone do not preclude him from securing and following a substantially gainful occupation. In both cases, the VA examiners' opinions were based on physical evaluations of the Veteran, with the opportunity to solicit and consider the Veteran's lay statements regarding his employment history. In both cases the VA examiners recognized that the Veteran's service-connected disabilities were not without symptomatology, and may be painful and difficult. Nonetheless, the examiners, based on their expert assessments, determined that the Veteran's service-connected disabilities did not prevent substantially gainful employment. The Board also points to the conclusion of SSA evaluators. While not binding on the Board or VA, such determinations are nonetheless informative to the extent that they also include discussion of the Veteran's hand and wrist symptomatology which prevented him from "performing fine and gross motion with the hands." See SSA report of October 18, 2006. To the extent that SSA indicated "disorders of back" as a secondary diagnosis contributing to the Veteran's disability, the Board notes that the VA has already recognized that the Veteran's back is disabling, as evidenced by the awarding of a 20 disability evaluation. Because the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation, the Board concludes that criteria for TDIU have not been met during any period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to TDIU is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs