Citation Nr: 1334718 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-08 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, the Veteran presented testimony before the undersigned in a hearing held in Washington, D.C. A copy of the hearing transcript has been associated with the file. In a March 2012 decision, the Board denied entitlement to TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2012, pursuant to a Joint Motion for Remand, the Court remanded the claim for readjudication. In August 2013, the Veteran submitted evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected left hamstring injury with semitendinosus tear with myositis ossificans and degenerative joint disease of the left knee, and left lower extremity compression of sciatic nerve associated with left hamstring injury with semitendinosus tear with myositis ossificans and degenerative joint disease of the left knee are not so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 C.F.R. §§ 3.340, 4.16(a), (b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations In August 2010 and July 2013, the Board remanded this issue for additional development. The Board instructed the RO/Appeals Management Center (AMC) to send the Veteran a duty-to-assist letter, provide him with an appropriate VA examination to determine the effect of his service-connected disabilities on employability, and adjudicate the issue. As a result of the remands, the AMC sent the Veteran duties-to-assist letters in September 2010 and November 2010, afforded him an examination addressing his employability in December 2010, and obtained a supplemental VA medical opinion in July 2013. The AMC then re-adjudicated the claim in a July 2013 Supplemental Statement of the Case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in September 2010 and November 2010, prior to the July 2013 SSOC, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim for a TDIU; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. He was informed of the type of evidence that could be submitted to support his claim. These letters also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with a VA examination in December 2010. A supplemental report was prepared by the December 2010 examiner in July 2013. The examination report and supplemental report reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination report and supplemental opinion are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). In October 2008, the Veteran presented evidence and argument in a hearing before the undersigned. Therefore, the duties to notify and assist have been met. TDIU 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 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). "Substantially gainful employment" is that employment "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." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2013). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit 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. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. 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 non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). A total disability rating 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 service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2013). In this case, the Veteran is service-connected for left hamstring injury with semitendinosus tear with myositis ossificans and degenerative joint disease of the left knee, evaluated as 20 percent disabling; and left lower extremity compression of sciatic nerve associated with left hamstring injury with semitendinosus tear with myositis ossificans and degenerative joint disease of the left knee, evaluated as 10 percent disabling. Thus, he does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra- schedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b) (2013). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As an initial matter, the Board points out the extraschedular considerations under 38 C.F.R. § 3.321(b)(1) were discussed in the Board's August 2010 decision. On his September 2010 application for TDIU, the Veteran indicated that he last worked in 1998 as an electronics technician, and that he had completed two years of college. Pursuant to the Board's August 2010 remand, the Veteran was afforded an examination in December 2010. The examiner noted that the Veteran retired in 2005. In noting diagnoses of left knee degenerative joint disease and left leg sciatica, the examiner found that the effects of these disabilities on employment were decreased mobility and strength, problems with lifting and carrying, and pain. The examiner opined that the Veteran's service-connected left knee and left leg sciatica disabilities would affect and limit his ability to obtain and secure employment. He added, however, that these disabilities would not be the sole disabilities affecting the Veteran's employability. Although his service-connected disabilities limit his physical activity due to decreased mobility and problems with lifting and carrying, he also had non-service connected coronary artery disease and diabetes mellitus which would at least as likely as not affect his employability. In an April 2013 letter, E.L.B., M.D., said that he had reviewed the records of the Veteran. He wrote that the Veteran had a very limited ability to sit, stand, or walk due to his service-connected injuries. Dr. B. opined that it was at least as likely as not that the Veteran was unable to secure or maintain substantially gainful employment solely as a result of his service connected disabilities. In July 2013, the December 2010 VA examiner provided an addendum to his prior examination report. After reviewing the Veteran's claims folder, the examiner indicated that the Veteran's service-connected left knee and left leg sciatica would be expected to limit his occupational choices but would not preclude the Veteran's obtaining employment in more sedentary occupations. The examiner opined that, based solely on the Veteran's service connected disabilities, the Veteran was at least as likely as not able to obtain secure employment that was more sedentary in nature. It was further noted that the Veteran's service-connected disabilities limited his abilities with mobility, lifting, and carrying. After reviewing the entire record, the Board concludes that entitlement to a TDIU is not warranted. The most probative evidence of record reflects that, solely considering the Veteran's service-connected disabilities, the Veteran is at least as likely as not able to obtain sedentary employment. The Board carefully considered the April 2013 letter from Dr. B.. However, while Dr. B. opined that the Veteran had a limited ability to sit, stand, or walk due to his service-connected injuries, Dr. B. never identified which of the Veteran's injuries he considered as being service connected. No mention was made of the Veteran's significant disabilities that are not service connected including sleep apnea and diabetes. Further, while Dr. B. mentioned that he had reviewed the Veteran's records it is not clear what records were reviewed or if he examined or even spoke with the Veteran. For these reasons, the Board finds the April 2013 letter from Dr. B. to be of less probative value and outweighed by the other evidence of record. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (in assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits). Contrastingly, the Board finds the report of the December 2010 VA examination, when coupled with the July 2013 addendum, to be very probative as they were definitive, based upon a complete review of the Veteran's entire claims file and in-person evaluation of the Veteran, and supported by detailed rationale. The VA examiner specifically identified and discussed the Veteran's service-connected and non-service connected disabilities. Accordingly, the December 2010 VA examination report and July 2013 addendum opinion are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Further, based upon review of the evidence, the Board concludes that this case presents no unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration. There is no evidence of anything out of the ordinary, or not average, in the Veteran's situation as a result of his service-connected left leg disabilities. While the Veteran would have trouble with mobility, lifting, and carrying, the weight of the probative evidence of record does not indicate that he is unable to perform some type of substantially gainful employment specifically as a result of service-connected limitations. Notably, the Veteran completed two years of college and there is nothing to indicate that he would not be suitable for a sedentary job. Furthermore, the VA examiner indicated that the Veteran's non-service connected diabetes mellitus and heart disability affected his employability. In the July 2013 addendum, the VA examiner indicated that the Veteran was not solely unable to work due to his service-connected disabilities. The Board cannot take into consideration limitations caused by those non-service connected conditions in determining his employability for extraschedular purposes. In sum, the weight of the probative evidence of record does not indicate that the average industrial impairment from the service-connected disabilities would be in excess of those contemplated by the assigned rating. Therefore, the Board finds that the record does not demonstrate that the Veteran's service-connected disabilities are of such severity as to preclude his participation in all forms of substantially gainful employment for which he is qualified. ORDER Entitlement to a TDIU is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs