Citation Nr: 1340273 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-24 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran had active service from June 1982 to September 1982 with subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs Regional Office (RO) in Portland, Oregon. This claim was previously remanded by the Board in July 2013. FINDINGS OF FACT 1. The Veteran is service connected for headaches, rated as 30 percent disabling, cervical strain, rated as 20 percent disabling, left knee status post meniscectomy, rated as 20 percent disabling, left knee degenerative joint disease, rated as 20 percent disabling, and right knee degenerative joint disease, rated as 10 percent disabling, with a combined disability rating of 70 percent. The Veteran does not meet the combined schedular requirements for TDIU. 2. The Veteran's service-connected disabilities are not of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159 (2008); 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). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter which is undated but which was uploaded to VBMS in August 2013 prior to the adjudication of this claim in September 2013. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service treatment records, and VA and private outpatient treatment records have been obtained. The Veteran has not indicated there are any outstanding relevant records yet to be obtained. The Veteran was afforded a VA examination in September 2013. The examination is adequate in that it was based on a review of the claim file, an interview of the Veteran and an examination of the Veteran. The examiner provided adequate reasoning for the opinions. In all, the VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Accordingly, the Board will address the claim on appeal. II. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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 or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits 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 or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Board notes that the Veteran is service connected for headaches, rated as 30 percent disabling, cervical strain, rated as 20 percent disabling, left knee status post meniscectomy, rated as 20 percent disabling, left knee degenerative joint disease, rated as 20 percent disabling, and right knee degenerative joint disease, rated as 10 percent disabling, with a combined disability rating of 70 percent. Therefore, his service-connected disabilities do not meet the percentage rating standards for TDIU as, while he has a combined evaluation of 70 percent, he does not have a single disability which is ratable at 40 percent disabling or more. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). At a February 2012 VA examination the examiner noted that the knee condition affects his ability to work in that it limits lifting, pulling and pushing. It was noted the Veteran last worked in 2000 in hotel maintenance as a custodian and he quit work due to his knee, back and neck pain. At a May 2012 VA examination the examiner noted that the Veteran's neck condition impacts his ability to work. It was noted he had pain while riding in vehicles. The neck disability also causes him headaches and makes it difficult for him to fall asleep. VA outpatient treatment records of May 2012 note the Veteran reported that he was unable to continue work as a laborer due to chronic pain and physical injuries. He also worked in child care but was not able to continue due to his knees. He also reported that he had been working for Vocational Rehab in the past year and also volunteers at a local non-profit. He works at the front desk and helps with housekeeping. The Veteran was afforded a VA neurological examination. The Veteran reported he gets headaches a couple of times a week which seem to be brought on by doing computer work or by bright lights. The examiner stated that the headache condition impacts the Veteran's ability to work. It was explained that he used to do physical labor such as apartment and hotel maintenance. He is unable to do that due to pain of his knee, back, and neck, sometimes with headaches. The examiner noted that the Veteran went to school for awhile but did not want to continue. Finally, it was noted that the headaches interfere with computer use. The Veteran was afforded a VA examination in September 2013. The examiner noted that due to the bilateral knee disabilities the Veteran can walk only two blocks at a time and has to stop due to pain. He avoids the stairs, bending and squatting due to pain, and is limited to lifting no more than 25 pounds. Regarding the cervical spine disability, it was noted that strenuous use or turning the neck, and lifting over 25 pounds causes pain. The examiner opined that the Veteran's cervical spine condition and bilateral knee conditions do not render him unable to secure and maintain substantially gainful employment in any type of sedentary employment. The examiner explained these conditions likely render him unable to work in any type of physical employment due to the stated limitations by Veteran, which is also supported by objective imaging studies. This includes employment in a loosely supervised situation or employment requiring little interaction with the public. Regarding the headaches, the examiner opined that the Veteran's headache condition does not render him unable to secure and maintain substantially gainful employment in any type of physical or sedentary employment, except that he states he is not able to work in jobs that require prolonged use of computer screens, as they trigger his headaches. This includes employment in a loosely supervised situation or employment requiring little interaction with the public. The examiner also provided an opinion as to the impact of the Veteran's eye disability on his ability to work. However, the Veteran is not service connected for an eye disability and therefore, the impact of the eye disability on employment is not relevant to the present claim. The Board finds that the probative medical evidence of record on the matter is against a finding that the Veteran is unemployable due to his service-connected disabilities so as to warrant referral of the issue of entitlement to TDIU on an extraschedular basis. Indeed, the Board notes that the February 2012 and May 2012 VA examiners did not opine that the Veteran's service connected disabilities rendered him unemployable. Rather, the examiners stated that the disabilities impact and/or affect his ability to work, and the Board does not view this to be equivalent to rendering him unemployable. On the other hand, the September 2013 examiner explained that the Veteran's limitations due to his knees and cervical spine disabilities only prevented employment requiring physical work and not sedentary work as the only limitations are regarding physical activities such as bending and squatting. Additionally, regarding the service connected headaches, the examiner stated that they do not prevent the Veteran from working, although the do prevent him from working on a computer. Significantly, the September 2013 VA examiner's opinion is consistent with the Veteran's own report in May 2012 that he had been working for a year at the front desk at a Vocational Rehab office and that he also volunteered at a non-profit, jobs which he still maintained at the time and which he stated he enjoyed. It is unclear as to why the Veteran stopped working for Vocational Rehab, however, this was a sedentary job that he was able to maintain for a year on top of volunteering just a year prior to the September 2013 VA examination. In summary, while the Board does not doubt that the Veteran's service-connected disabilities have some effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 70 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: '[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.' See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). As such, the Board finds that referral for extraschedular consideration is not warranted. ORDER Entitlement to TDIU is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs