Citation Nr: 1334747 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-25 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1971 to January 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which increased the evaluation for the Veteran's service-connected low back strain to 20 percent. Through his July 2009 Substantive Appeal, the Veteran requested a hearing before a member or members of the Board at the local RO, which was scheduled for March 2011. The Veteran failed to appear and no good cause has been shown or offered. 38 C.F.R. § 20.704(d) (2013). Therefore his request is considered withdrawn, and this matter is ready for further review. 38 C.F.R. § 20.702(d) (2013). In a June 2011 decision and remand, the Board, in part, determined that a TDIU was part of the increased rating claim on appeal and remanded the TDIU issue to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. As discussed below, because the Veteran was provided proper notice by the AMC as to what is needed to substantiate a claim for entitlement to a TDIU and the Veteran failed to appear for his scheduled VA examinations, the development ordered by the previous remand, the Board finds that there has been substantial compliance with the prior Board remand order. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran's representative in March and September 2013 statements appears to assert that the matter of entitlement to an evaluation in excess of 20 percent for the Veteran's service-connected low back strain is currently before the Board. However, in the June 2011 decision and remand, the Board, in part, denied this claim and the Veteran has not appealed the matter to the U.S. Court of Appeals for Veteran's Claims (Court) nor has he filed a new claim for an increased rating. Board decisions are generally final upon issuance and the Veteran did not appeal the decision. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013). As such, the issue of entitlement to an evaluation in excess of 20 percent for the Veteran's service-connected low back sprain is not currently in appellate status and this issue is not before the Board. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is service connected for a low back strain with a 20 percent evaluation. 2. The Veteran's service-connected disability has not rendered him unable to obtain and retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, notice was provided to the Veteran in June 2011, prior to the initial adjudication of the claim in October 2012. The Veteran was notified what information and evidence is needed to substantiate a claim for a TDIU, as well as of VA and the Veteran's respective duties for obtaining evidence. The June 2011 notice letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations. The July 2013 supplemental statement of the case readjudicated the issue. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006). Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes VA treatment records, VA examination reports, the June 2011 Board decision and remand, and the Veteran's lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue that has not been obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's appeal. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with two VA spine examinations in August 2008 and May 2010 in connection with a claim previously decided by the Board in June 2011. In accordance with the Board's June 2011 remand instruction for the RO to adjudicate the issue of TDIU, VA examinations were scheduled for April 2012 and June 2013. However, the reports from the VA medical center (VAMC) note that the Veteran failed, without explanation, to report for either scheduled examination. The October 2012 supplemental statement of the case (SSOC) informed the Veteran of his failure to report for the VA examination scheduled for April 2012. The July 2013 SSOC informed the Veteran of his failure to report for the VA examination scheduled for June 2013. There is no showing in the record of good cause for his failure to report for the scheduled examinations and the Veteran has not offered a reason for his failures to report. There is no indication in the record that the letters notifying the Veteran of the April 2012 and June 2013 VA examinations were not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). In short, there is no evidence of any VA error in notifying or assisting the Veteran. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Therefore, remand for an additional VA examination is not warranted as to the claim for TDIU. The Board will but to decide the Veteran's claim on the basis of the existing record. 38 C.F.R. § 3.655 (2013). Additionally, on his July 2009 Substantive Appeal, the Veteran requested a hearing before a member of members of the Board at the local RO, which was scheduled for March 2011. Under 38 C.F.R. § 20.704(d), if a claimant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appeal was with "good cause" and arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. Here, the Veteran failed to appear and has offered no rationale for his absence. As such, no good cause has been shown or offered. Therefore, his request is considered withdrawn. 38 C.F.R. § 20.702(d). As VA satisfied its duties to notify and assist the Veteran, the Board finds that 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. TDIU The Veteran seeks a total disability rating based on individual unemployability due to service-connected disability (TDIU). He contends that his service-connected disability prevents him from obtaining and maintaining substantially gainful employment. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must first refer any claim that meets the criteria for referral for consideration of entitlement to TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In the present case, service connection has been granted for a low back disability, with a 20 percent evaluation. The Veteran's one service-connected disability is not rated at 60 percent or more; thus, he does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). Regardless, the Board must also consider entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). In a May 2008 claim for entitlement to an increased rating for his service-connected low back disability, the Veteran stated that over the years his back condition has worsened and prevented him from holding certain types of employment. In a July 2008 written statement, the Veteran asserted that his employment has been limited because of his service-connected back disability. As noted on a July 2008 VA treatment record, the Veteran reported of constant pain in his back and that he is unable to get a job. Upon VA examination of his spine in August 2008, the Veteran reported that his last job was at a detail car wash, but he had to stop working this job 15 years ago because of his severe back pain. He reported that he cannot drive his car at all because of his back pain, but reported being able to manage other activities of daily living. The Veteran reported that he can walk only one block distance and for about five to 10 minutes without severe back pain. In a July 2009 Substantive Appeal, the Veteran reported that he had been unable to work for five or six weeks because of his back condition. Upon VA examination for his spine in May 2010, the Veteran reported his usual occupation was as a car detailer and cook and that he was currently unemployed and not retired. The Veteran reported that he had been unemployed for less than one year and stated that the reason for his unemployment was back pain and problems reaching and stretching. The Veteran reported that he was unable to walk more than a few yards. Subsequent to the Board's June 2011 remand instructions, the Veteran was scheduled for a VA examination in April 2012, but failed to report according to the October 2012 SSOC. The Veteran was then scheduled for a VA examination in June 2013, but failed to report according to the July 2013 SSOC. After considering the totality of the record, the Board finds that the weight of the evidence does not demonstrate that the Veteran's service-connected disability renders him unable to secure or follow a substantially gainful employment. The record is unclear as to whether the Veteran is currently employed. Although the Veteran's service-connected disability no doubt results in some degree of functional impairment, as acknowledged by his current compensable rating and the VA examination reports, it is not shown to prevent all forms of employment. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See id. ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran has offered his own assertions regarding the level of impairment resulting from his service-connected disability, and the Board finds him credible to testify regarding such observable symptomatology as chronic low back pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran, in the May 2008 claim and the July 2008 written statement, has stated that his service-connected back disability has prevented him from holding certain types of employment and has limited his employment. The July 2008 VA treatment record also notes the Veteran reported being unable to get a job. However, in none of these statements did the Veteran assert that his is unable to secure or follow a substantially gainful employment. The Veteran has asserted that he is unable to obtain certain types of employment, not that he is precluded from obtaining or maintaining all forms of employment. The Veteran has not demonstrated or submitted evidence establishing that he is precluded from obtaining or maintaining all forms of employment, to include sedentary employment. Moreover, the Veteran has reported that he became unavailable to secure or follow substantially gainful employment beginning at different times. At the August 2008 VA spine examination, the Veteran reported that he had to stop working at a detail car was 15 years prior due to his back pain. In the July 2009 Substantive Appeal, the Veteran reported he had been unable to work for five to six weeks because of his back condition. At the May 2010 VA spine examination, the Veteran reported he was currently unemployed and had been so for less than one year. These inconsistencies in the record weigh against the Veteran's credibility as to whether he is currently unemployed and when, if at all, he became unable to obtain substantially gainful employment. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Based on the evidence discussed above, the Board finds that the Veteran is not a credible or reliable historian, and that his assertions that service-connected disability prevents him from obtaining and maintaining substantially gainful employment are not supported by any credible evidence. Accordingly, the Board finds that the Veteran is not a credible witness and declines to assign his allegations any evidentiary weight. The Veteran failed to report for the April 2012 and June 2013 VA examinations and there is no credible evidence of record that the Veteran is currently unemployed or unable to secure substantially gainful employment. In the absence of any credible evidence to the contrary, entitlement to a TDIU is not warranted. In conclusion, the preponderance of the evidence is against a finding that the Veteran's service-connected disability, by itself, prevents him from securing or following substantially gainful employment consistent with his education and occupational experience. Therefore, a referral of the Veteran's claim to VA's Director, Compensation and Pension Service for consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b) is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs