Citation Nr: 1339835 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-05 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to total disability due to individual unemployability (TDIU) prior to April 10, 2009. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1968 to December 1970 and February 1976 to February 1994. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This issue was previously before the Board on two occasions. In August 2012 this appeal was remanded for a VA examination. Such examination was provided and the matter properly returned to the Board. In September 2013 the Board again remanded this appeal for further development. Specifically, the Board requested a supplemental statement of the case (SSOC) concerning the above issue. Such SSOC was provided and the matter has again properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" and "VBMS" systems to ensure a total review of the evidence. FINDING OF FACT The evidence does not establish the Veteran's service-connected disabilities rendered him unable to follow a substantially gainful occupation earlier than April 10, 2009. CONCLUSION OF LAW The criteria for an effective date earlier than April 10, 2009 for grant of TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 4.16, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In August 2008 the Veteran filed a claim seeking TDIU. In January 2013 the RO issued a rating decision granting his claim for TDIU effective April 10, 2009. The Veteran is now seeking a claim for an earlier effective date for his TDIU rating. VA regulations provide a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). In determining whether the Veteran has one disability of 60 percent or 40 percent in combination, the following will be considered as one disability: 1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, 2) Disabilities resulting from common etiology or a single accident, 3) Disabilities affecting a single body system, 4) Multiple injuries incurred in action, or 5) multiple disabilities incurred as a prisoner of war. Id. The record establishes the Veteran met the schedular criteria for TDIU effective April 10, 2009, but no earlier. Prior to April 2009 the Veteran was receiving a 20 percent rating for arthritis in his cervical spine, 20 percent for degenerative disc and joint disease in his lumbar spine, 20 percent for right leg radiculopathy, 20 percent for peripheral neuropathy in the right upper extremity, 10 percent for tinnitus, and noncompensable ratings for bilateral hearing loss, residuals of fracture ring finger of the right hand, and residuals of fractured toe of the right foot. Based on the Combined Ratings Table this yielded a total combined rating of 63 percent. 38 C.F.R. § 4.25, Table I. VA regulations provide that combined disability values will be converted to the nearest number divisible by ten, and combined values ending in five will be adjusted upward. 38 C.F.R. § 4.25. This yields a total combined rating of 60 percent for the Veteran during the period between when he filed his claim in August 2008 and when TDIU was granted in April 2009. Between August 2008 and April 2009 the Veteran had a total combined rating of less than 70 percent. In addition, he did not have any one single disability rated in excess of 60 percent, even taking into consideration VA regulations that provide certain disabilities may be considered as one disability. For example, the Board has considered that the Veteran's right leg radiculopathy and lumbar degenerative disc disease may be considered as one disability since both disabilities resulted from the same common etiology, the Veteran's lumbar degenerative disc disease. However, these two disabilities only combine as 40 percent, less than the required 60 percent. See 38 C.F.R. § 4.25. The same is true for the Veteran's right upper extremity peripheral neuropathy and arthritis of the cervical spine. Both are due to the Veteran's arthritis of the cervical spine, but combine to only 40 percent. The same analysis would apply if the Board considered disabilities of the same body system, such as the orthopedic disabilities here - they still would not combine to 60 percent. Therefore, the Board finds the Veteran did not meet the schedular criteria for TDIU prior to April 10, 2009. In April 2009 the Veteran was granted an additional 10 percent rating for left side cervical radiculopathy and a 10 percent rating for left leg radiculopathy. These additional ratings brought the Veteran's combined evaluation to 70 percent, therefore meeting the schedular criteria for TDIU at that time, and that is the date as of which TDIU was granted. The Board has considered whether an earlier effective date for TDIU is warranted based on an extra-schedular basis. 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. The Board acknowledges that the record reflects the Veteran has been unemployed since 2003. The Veteran asserts that his unemployment since 2003 was due to his service-connected disabilities. However, the Board finds that the evidence does not support the Veteran's assertions and does not establish the Veteran was otherwise unable to secure and follow substantially gainful occupation solely due to his service-connected disabilities prior to April 2009. First, the Board notes that while the Veteran's most recent employer indicated he ended employment in March 2003, the employer noted no concessions were made to the employee for reason of disability. The employer indicated the Veteran was not receiving any disability benefits from the employer, nor was any other disability noted. Therefore, the Board finds the Veteran's most recent employer did not indicate his employment was terminated due to his service-connected disabilities. VA examination was done in July 2008, just before the Veteran filed his TDIU claim. Interestingly, at that time, he referred to himself as retired since 1994, based on both age or duration of work and medical problems. However, when he filed his TDIU claim the following month, he reported working for a pool and spa company from 1997 to 2003. The Veteran had previously claimed in 2004 that he stopped working in 2003 due to PTSD - a condition not service-connected. On VA examination in 2010, the Veteran stated that he had worked as a service technician for a hot tub company and that he had stopped working in 2003 due to the pain in his low back and legs. The examiner noted the effects of the Veteran's disabilities on his occupational activities included decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength of the lower extremities, and pain. The examiner concluded that the Veteran was unable to work and, again, he has been granted a total rating back to April 2009. This opinion was provided in 2010, and the Board will examine the medical evidence between the date of the Veteran's TDIU claim in 2008 and the date as of which a total rating has already been assigned. The Board concludes the medical evidence during the relevant time period simply does not support that the Veteran was unable to obtain or maintain employment due to his service-connected conditions. Instead, the medical evidence during the period of August 2008 to April 2009 acknowledges that the Veteran's medical conditions caused some impairment on his daily activities, but did not suggest the Veteran was otherwise unable to secure gainful employment. For example, in October 2008 the Veteran's VA physician noted the Veteran had decreased range of motion on lumbar flexion, but noted his condition was seeing improvement with physical therapy. The physician also praised the Veteran for walking a mile to a mile and a half daily and encouraged him to continue both physical therapy and walking. His gait was normal; this was despite the fact that the Veteran had a diagnosis of right leg radiculopathy, even though this was not shown on electrodiagnostic testing. The Veteran's service-connected conditions clearly showed limitations in daily activities due to his service-connected disabilities, and he would arguably be prevented from performing strenuous physical activities. However, there was nothing unusual about his disability picture such that an extraschedular award of TDIU would be appropriate. He remained physically active despite his disabilities, and there are no indications that he would be unable to perform in a sedentary position. Accordingly, the Board finds the medical evidence does not suggest the Veteran was unable to secure substantially gainful employment and referral for consideration of an extraschedular TDIU award is not warranted. Based on the foregoing, the Board finds that the effective date of April 10, 2009 for grant of the Veteran's schedular TDIU was appropriate. The evidence fails to establish the Veteran met the schedular criteria earlier than April 2009, and does not establish referral for consideration of an extra-schedular TDIU rating was warranted. Therefore the Veteran's claim for an earlier effective date for his TDIU rating is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in October 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established, as well as the specific requirements for a TDIU claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for entitlement to TDIU prior to April 10, 2009 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs