Citation Nr: 1335599 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-15 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1974 to July 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2007, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In November 2007, August 2009, August 2011 and again in October 2012 this claim was remanded for additional development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the case was reviewed by the Director, Compensation and Pension Service and a determination was made. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. Service connection is currently in effect for adjustment disorder with depressed mood, rated as 50 percent disabling; lumbar spine degenerative disc disease, rated as 20 percent disabling; and for radiculopathy in the right leg, rated as 10 percent disabling. The combined disability rating is 60 percent. 2. The Veteran's service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for assignment of TDIU are not met. 38 U.S.C.A. §§1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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). Notice was provided in December 2007 as to the elements necessary to substantiate a claim for TDIU and the claim was subsequently readjudicated, most recently in a June 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Relevant to the duty to assist, the Veteran's service treatment records, post-service VA treatment records, and VA examination reports are of record. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. Significantly, as noted above, the Board finds that there has been substantial compliance with the previous remand directives, and no further action is necessary in this regard. To that extent, that on most recent remand, the Board requested an opinion that addressed whether the Veteran's service-connected disabilities, singly or jointly, rendered him unable to secure or follow a substantially gainful occupation from the VA Director of the Compensation and Pension service. The Board finds that there has been substantial compliance with this directive as the requested opinion has been obtained and it was found that his disabilities did not preclude employment. The Board finds the rationale provided to be clear and well-reasoned and from the rationales in the file the Board can determine whether the Veteran's service-connected disabilities render him unemployable. Thus, the Board finds that the opinions are responsive to the previous remand directives and provide a basis to decide the Veteran's claim. Thus, the Board finds that VA has fully satisfied the duty to assist. Additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. TDIU The Veteran contends that his service-connected disabilities render him unemployable. 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 a rating 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. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A threshold requirement 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). Service connection is currently in effect for adjustment disorder with depressed mood, rated as 50 percent disabling; lumbar spine degenerative disc disease, rated as 20 percent disabling; and for radiculopathy in the right leg, rated as 10 percent disabling. The combined disability rating is 60 percent. Therefore, the minimum percentage requirements for a TDIU rating set forth in 38 C.F.R. § 4.16 (a) are not met. The remaining question before the Board, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities and thus entitled to referral for consideration of a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). Notwithstanding the circumstances of not meeting the schedular criteria for TDIU under 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. Indeed, a total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable solely by reason of service-connected disability on an extraschedular basis. 38 C.F.R. § 4.16(b). In order to meet this standard, the record must show some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A VA form 21-4142 was received in January 2005. The Veteran indicated that he last worked in January 2002 as a machinist. He reported that he completed 2 years of college and had training as a jet mechanic, in plumbing and as a machinist. He also reported that he had not tried to obtain employment since he became too disabled to work. On VA examination in December 2004, the Veteran reported having back pain daily that occasionally radiated into the right buttock and leg. He noted no motor or sensory loss in the extremity. He had no incapacitating episodes in the past year. He reported that he quit working three years prior due to his back. The Veteran requested not to do bending since it put his back in spasm. The examiner noted that when the Veteran was casually observed, he could bend over, put on his clothes and appeared to demonstrate what appeared to be a normal range of motion regarding forward flexion. A private MRI was noted to show minimal disc bulge at the L5-S1. The diagnosis was, minimal disc disease without nerve root compression or canal stenosis at the L5-S1 level of the lumbar spine. The examiner stated that this diagnosis was made entirely on the basis of the MRI report. In a July 2005 report it was noted that the Veteran did not have any neurological defects. The January 2009 VA orthopedic examiner evaluated the Veteran who complained of back pain that radiated down the right leg and into the foot. It was noted that the Veteran had not worked since 2001 and that the Veteran had previously worked as a diesel mechanic. The Veteran stated that he had been unable to work because he cannot do any prolonged standing, sitting, bending, or lifting, all of which he had to do as a mechanic. He reported that he was not able to do any of the former jobs he had in the past because of his back. He stated that he could probably do a desk job, but that he did not have the requisite skills. The examiner commented that the affect of the Veteran's back disability was as "discussed above." The Veteran was afforded a VA spine examination and the September 2009 VA examiner commented that it was unlikely that the Veteran could do physical types of work which he had previously done. Further, the examiner stated that it was questionable as to whether the Veteran could do desk work because he complained of back pain after sitting or standing for more than 20 or 30 minutes and he did not have any training for any type of work of that nature. The examiner noted that the symptoms and physical findings were somewhat out of proportion to the objective back abnormalities shown on X-ray. A September 2009 VA mental examination showed the Veteran complained of depression. He reported a strained relationship with his wife of 25 years. He reported that he stopped working in 2000 due to back problems. Examination showed his mood varied from depressed to angry; his affect was appropriate; his thought processes were logical with no looseness of association; he was oriented in all spheres; and there was no evidence of delusions or hallucinations. He denied homicidal or suicidal ideation and his insight and judgment were fair to poor. His GAF was 58 and the diagnosis was, adjustment disorder with depressed mood. The examiner stated that the Veteran's depression did not preclude gainful employment. On VA mental examination in November 2011, after examining the Veteran the VA psychologist diagnosed adjustment disorder with depressed mood. The examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication due to his diagnosed adjustment disorder with depressed mood. The Veteran's symptoms were: depressed mood; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and an inability to establish and maintain effective relationships. The Veteran was afforded a VA back examination in December 2011. The examiner diagnosed degenerative disc disease of the lumbar spine. The Veteran complained of low back pain, stiffness and intermittent spasms. There were no persistent neurological complaints and no subjective weakness or numbness of the legs. He was examined. It was noted that the Veteran was limited sitting 20-30 minutes and can stand for a few moments and then resume sedentary activities. It was indicated that he is limited standing to 30 minutes, walking one block. It was noted that the Veteran's thoracolumbar spine condition impacted his ability to work. However, the examiner opined that the Veteran could perform sedentary type work. The examiner stated that the logic was that the Veteran could sit for long periods of time (with transient interruptions). Also, it was noted that the Veteran had decent education which would allow him to seek such employment. The examiner opined that the Veteran as likely as not could seek and maintain sedentary type employment. It was also noted that the MRI of his lumbar spine demonstrated minimal disc disease without disc herniation or nerve root entrapment. This medical evidence would favor his ability to perform sedentary type work. Further, the examiner explained that the Veteran could perform sedentary type work because he could sit for long periods of time. A social and industrial survey was provided and included a review of the claims file and a personal interview with the Veteran. The Veteran's educational history included graduation from high school and two years of college. After the military, the Veteran worked for South Western Bell as an installer and repairman and worked as a machinist. He has not been gainfully employed since 2001. The social worker opined that the Veteran was socially impaired as a direct result of his service-connected disabilities and that he may be industrially impaired based on inability to fully execute physical requirements to maintain employment based on previous job training and experiences reported. It was the writer's opinion that the evidence was conclusive that the service-connected disabilities preclude employment and have a gross impact on his activities of daily living, interpersonal relationships, and social as well as industrial functioning. The social worker explained that it was not likely that the Veteran could be trained and hired to work in a sedentary type job because he would need to have flexible break and sick leave time when intermittent pain occurs. The case was reviewed by the Director, Compensation and Pension Service and an opinion was offered. The medical evidence was reviewed and the claim for a TDIU was denied. It was noted that a review of the file showed that on VA examination in December 2011 the Veteran was capable of sedentary work. It was noted that although the social and industrial survey was favorable, there were no medical opinions that indicate the Veteran is unemployable due to service-connected disabilities. It was noted that he has not been hospitalized for any extended period of time due to service connected disorders and that the totality of the evidence does not show that he would be unemployable in all environments solely due to service connected disabilities. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds that the offered VA negative opinions, in their totality, to be the most probative evidence of record, and outweigh the VA social worker's favorable finding and the January 2009 and September 2009 findings. The Board attaches the most probative value to the VA doctor's opinion in 2011 and the finding by the Director, Compensation and Pension Service as they were offered by medical professionals, were well reasoned, detailed, supported by rationale and consistent with other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The December 2011 VA orthopedic examiner, a physician, examined the Veteran thoroughly prior to rendering the opinion. The rationale provided included a finding that the Veteran had a good education and that his disc disease was minimal. And the November 2011 psychiatric examiner found occupational impairment due to mild or transient symptoms only; in 2009 the mental examiner found that the depression did not render the Veteran unemployable. The Director considered the evidence of record, including the social and industrial survey and found that the Veteran was not unemployable. Rationale was provided. Although the Veteran does suffer from his service-connected disabilities, the VA medical opinions have determined that he is able to work in a sedentary position. As to the findings in January 2009 and September 2009, the examiners based their finding that the Veteran could not do sedentary work because of his lack of skills, not due to his service-connected disabilities. And in January 2009, the Veteran stated that he could probably do a desk job. As to the social and industrial survey, the clinician is noted to be a social worker while the VA examiner is a medical professional. The Board gives the social worker's opinion less probative value. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000) (the qualifications and expertise of the examiner are factors in considering the weight to give an opinion). Further the finding by the social worker is not definitive. The social worker opined that he may be (emphasis added) industrially impaired based on inability to fully execute physical requirements to maintain employment based on previous job training and experiences reported. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a Veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as "the Veteran's death may or may not have been averted. And while it was the writer's opinion that the service-connected disabilities preclude employment it was also stated that the disorders had a "gross impact" on his industrial functioning. Looking at the record in its totality, the Board finds that the weight of the evidence is against the claim. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain functional limitations associated with his service-connected conditions. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, he has not demonstrated the necessary knowledge or expertise to offer a competent opinion as to whether his service-connected disabilities preclude substantially gainful employment. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the impact of disabilities on employability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). His assertions are not competent evidence of unemployability, and have little probative value when weighed against the VA opinions of record. As to the argument that he was found disabled by the U.S. Railroad Retirement Board, the Board would point out that VA is not bound by the findings of any other agency regarding employability and that the finding by the U.S. Railroad Retirement Board, was based on not only the service-connected disorders but also for carpal tunnel syndrome which is not service-connected. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies. For these reasons, a TDIU is not appropriate in this case. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities, alone, preclude him from obtaining and maintaining substantially gainful employment. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Thus, in the absence of any evidence of unusual or exceptional circumstances beyond that that contemplated by the assigned scheduler disability evaluations, a referral for consideration of a TDIU on an extraschedular basis is not warranted, and the preponderance of the evidence is against the claim. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER The claim for a TDIU is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs