Citation Nr: 1434585 Decision Date: 08/04/14 Archive Date: 08/08/14 DOCKET NO. 08-26 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an extraschedular rating for degenerative disc disease (DDD) with right sacroiliitis at L5-S1, pursuant to 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability rating based on individual unemployability (TDIU), pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to May 1993. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a January 2007 rating decision by the Regional Office (RO) in Indianapolis, Indiana, which granted service connection for DDD, L5-S1, with a 10 percent initial disability rating, effective July 21, 2006, and denied entitlement to a TDIU rating. In December 2008, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. In June 2010, the Board referred the issues on appeal to the VA Director of Compensation & Pension for consideration. Of record are an April 28, 2011 letter regarding the TDIU claim and a December 2011 letter considering entitlement to an extraschedular disability rating. The Board finds that the RO complied with the remand directives and therefore, a new remand is not necessary to comply with the holding in Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Currently, the Veteran has a 20 percent schedular rating for service-connected DDD with right sacroiliitis at L5-S1 and a 10 percent schedular rating for his service-connected right lumbar radiculopathy. 2. The Veteran has a high school diploma and training as a truck driver; after service, he worked as a truck driver until resigning in 2004 due to back pain; he has not worked fulltime since 2004. 3. The probative evidence of record does not indicate that the Veteran's lumbar spine disability is so exceptional or unusual that the schedular ratings do not adequately compensate for his symptomatology. 4. The probative evidence of record indicates that the Veteran can no longer work as a truck driver due to his service-connected disabilities; it does not indicate that were he to seek available retraining he would be physically or mentally unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 20 percent on an extraschedular basis for DDD with right sacroiliitis at L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.321 (2013). 2. The criteria for entitlement to a TDIU rating, to include on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in August 2006, VA provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection and entitlement to a TDIU, including what he needed to provide and what would be obtained by VA relating to his claims. The claim for a higher rating now on appeal flows downstream from a January 2007 rating decision, which initially established service connection for DDD at L5-S1 (subsequently to include right sacroiliitis) and considered entitlement to a TDIU. See 38 C.F.R. § 3.400 (2009). The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490- 91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify with respect to the issue of entitlement to a higher rating is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). In addition, the Veteran was notified of the requirements for entitlement to higher ratings and a TDIU in the statement of the case and subsequent supplemental statements of the case. There is no indication that the Veteran has not received proper notice of what is required of him to substantiate the claims on appeal. VA also obtained relevant records, to include the Veteran's service treatment records, VA treatment records and private treatment records. 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 claims that has not been obtained. The Veteran was also afforded VA examinations January 2007 and August 2009 The opinions provided included adequate discussion of the opining examiner's clinical observations and a rationale to support these findings and conclusions within the context of the Veteran's relevant clinical history as contained within his claims file. Thus, the January 2007 and August 2009 opinions and medical examinations are collectively deemed to be adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided the opportunity to meaningfully participate in the development of his claim. He testified at a hearing before the Board and his representative provided numerous reports and statements in support of his claim. Washington v. Nicholson, 21 Vet. App. 191 (2007). Based on the foregoing, the Board concludes that no further assistance to the Veteran with the development of the evidence is required. II. The Law In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, "[a]s is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). There must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular consideration is warranted. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as 'governing norms' (which include marked interference with employment and frequent periods of hospitalization). In regard to a TDIU rating, it is the established policy of the 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(b). A 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. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). III. The Evidence At a VA examination in January 2007, the Veteran indicated that because of lower back pain, he stopped working a permanent job and resigned from this employment as a truck driver in April 2004. He was occasionally "working side jobs." It was noted he took pain medication daily for his back pain. His gait was normal and he was not using assisting devices. Pain in the thoracolumbar spine was noted. Forward flexion was to 75 degrees and extension to 10 degrees. Lateral bending to left and right was to 30 degrees as was lateral flexion to the left and right. During repetitive motion, the Veteran had increased pain, increased fatigability, lack of endurance and decreasing flexion and extension within 5 degrees. A loss of disc height and a small right, posterolateral disc herniation was noted on MRI. A chronic strain of lumbosacral spine, degenerative disc disease and small right posterolateral disc protrusion were diagnosed along with radiculopathy in the right lumbar spine. In a January 2008 notice of disagreement, the Veteran's representative expressed concern that the VA examination was inadequate because a goniometer was not used to measure limitation of motion. In September 2008, the Veteran's representative submitted a statement from Mr. D.L.C.at the Indianapolis Rehabilitation Agency. He is not a medical doctor, although he specializes in physical therapy and rehabilitation. He indicated the Veteran's prognosis was "poor/guarded/NO WORK POTENTIAL in any capacity." He indicated functional impairment, to include no lifting/carrying, no prolonged sitting/standing (5-10 minutes tolerance), no overhead reaching - no bending/twisting. He also noted poor endurance, poor balance & stability, decreased paraspinal and periscapular neuromuscular function, poor gross motor control & decreased biomechanical upper and lower body integration and severe/recurrent muscle spasms. In December 2008, the Veteran testified at a videoconference before the Board. The Veteran indicated he had a high school diploma and went to truck driving school. He stated between 1994 and 2004, he was a truck driver; after 2004, he did not continue to work fulltime. He indicated that he resigned from his job in 2004 because his employer began making him unload his truck and he could not keep up with the pace; it was his contention that he had to resign or be fired. Thereafter, he sought out some labor and carpentry work, although he indicated the last job was in June of 2004. He stated it caused pain to sit for long periods as a truck driver and his back pain would be irritated when the truck would hit a bump and bounce. As to the possibility of performing sedentary jobs, the Veteran indicated he could not stay focused long enough because his back was so agitated. He also added that he had trouble focusing and that did not think an employer could put up with him "unless I'm on my own and I can just go at my own rate . . ." He indicated he thought his absenteeism would be high because he would need to take frequent breaks and lie down. The Veteran's spouse testified at the hearing that her husband was in constant pain and could not do as much as he used to be able to do. She indicated he was a stay at home father and took care of the house and the children, but that he did not sit for long periods. In June 2009, the Board remanded the claims to schedule the Veteran for an additional VA examination to reassess the nature and severity of the Veteran's spine disability and to consider his capacity to gain and follow substantially gainful employment. In August 2009, a VA physician reviewed the claims file and examined the Veteran. Stiffness, limited motion and back and neck pain were noted. In addition radiation of pain, weakness and numbness were noted as radiating from the right side of the back down the right leg to all toes. Flare-ups in symptoms were noted to be moderate and occur on a daily basis. Bending, pushing, rest and medication were noted to be precipitating and alleviating factors. As to the extent of additional limitation of motion or other functional impairment during a flare-up, the Veteran indicated he would have to limit further activity until feeling better. There was no notation of paralysis, paresthesias, unsteadiness or poor coordination. Sleep impairment due to back pain was noted. The Veteran's gait was noted to be normal and it was indicated he could walk about 1/4 mile. Posture was noted to normal. Ankylosis was not found. Objective abnormalities of the thoracic sacrospinalis included guarding on the right, pain with motion on the right and tenderness on the right. Muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour was not demonstrated. Range of motion was measured by goniometer. Flexion was to 40 degrees, extension was to 15 degrees, left and right lateral flexion were to 20 degrees, left and right lateral rotation were to 20 degrees. The examiner noted objective evidence of pain on active range of motion and repetitive motion. The examiner indicated all measurements were taken by goniometer X 3 and consistent without fatigue, with the exception of forward flexion where the Veteran stated he was only able to perform it one time due to fear of increased pain. The examiner considered multiple radiographs of the lumbar spine and the thoracic spine obtained in April 2009. There was no acute fracture, subluxation or abnormal lordosis noted in the lumbar spine; the intervertebral disc spaces were preserved. Two views of the thoracic spine indicated no acute fracture of subluxation. Mild levoscoliosis and mild chronic superior endplate depression of the C-5 vertebral body were noted. MRIs of the lumbar and thoracic spine that were taken at a non-VA facility in May 2009 were also considered by the examiner. The thoracic study showed mild DDD changes diffusely to include cervical spine. The lumbar study showed DDD at L3-4 and L5-S1, with these changes most pronounced at L3-4 on the left. This was noted to be in contrast to the lumbar MRI in the claim's file of March 2000, which noted a small rightward L5-S1 disc herniation. The examiner considered the Veteran's usual occupation as a truck driver and that he had been unemployed for "2 to 5" years due to "back problems." Effects on usual daily activities were noted. Back pain was noted to have a moderate effect on chores, shopping, traveling, bathing, dressing, toileting and grooming. It was indicated to have a severe effect on sports and recreation. As to the Veteran's employability, the examiner opined: Veteran is employable despite the above medical conditions so long as he can avoid moderate to heavy or repetitive lifting and bending/twisting at the waist. The Veteran would also need to avoid prolonged standing and walking, should limit climbing, and should be allowed to change position at will. These restrictions, however, would likely preclude further working as a truck driver as he was previously employed; therefore, he may have to take part in job retraining. Individuals with this moderate degree of clinical findings and symptoms are routinely treated successfully with a variety of therapeutic approaches, including optimization of analgesic therapy and interventional modalities such as therapeutic injections. Such treatments frequently allow the recipients to function with little to no degree of daily symptoms or side effects. Based on the results of the August 2009 examination, the RO increased the Veteran's schedular disability rating to 20 percent in an October 2009 rating decision and continued the denial of entitlement to a TDIU. In October 2009, the Veteran's representative provided additional evidence and indicated his belief that the VA examiner's finding that the Veteran's medical disability would "likely preclude further working as a truck driver" meant that the Veteran was completely unemployable given that he has no other job training and no other job experience. The representative submitted an additional statement from Mr. D.L.C. to specifically address the effect of the Veteran's service-connected lower back disability on his employment given the evidence of a disability in the cervical spine revealed at the 2009 examination. The representative stated that Mr. D.L.C.'s supplemental report supported a conclusion that the Veteran is "not able to work based solely on his service-connected lumbar spine conditions." In the statement, Mr. D.L.C. reworded his prognosis to indicate the Veteran had "no work potential in any capacity due to lumbar paraspinal neuromuscular limitation/dysfunction." Mr. D.L.C. again listed functional impairments, to include poor postural integration/trunk stability/neuromuscular function with both gross and fine motor deficiencies/poor coordination, poor balance, severe low extremity pain/numbness that is exacerbated by fatigue/activity, poor lumbar stability and decreased lower extremity proprioception, decreased mobility/function, poor endurance, paraspinal lumbar hypertonicity with dermatonal loss L4-5 and L5-S1 right worse than left. He again repeated his conclusion that the Veteran had "no work potential in any capacity, either sheltered or competitive - patient is unemployable." In March 2010, after continued denial of the Veteran's claim in a February 2010 supplemental statement of the case, the Veteran's representative submitted additional evidence in connection with the TDIU claim. He enclosed copies of reports from Mr. C.Y., a vocational expert, and from Dr. C.K., an orthopedic surgeon. Dr. C.K. met with the Veteran and indicated he would not be providing treatment and that a report based on his interview and review of the claims file would be sent to his representative. Dr. C.K. reviewed the history of the Veteran's injury. He indicated his opinion that it is "at least as likely as not that [the Veteran] is unable to maintain gainful employment as a result of [his injuries]." His rationale focused primarily on the etiology of the back injury and its relationship to the Veteran's military service and his belief the Veteran was not provided proper medical care during his time in the military and shortly thereafter. After review of the record, most specifically Mr. D.L.C.'s statements, Mr. C.Y. determined the Veteran's functional capacity was 50%. He reviewed the August 2009 VA examination and opined: "The report indicates that [the Veteran] is employable but places severe restrictions upon him, to the extent that employment within these limitations would be hard to locate." As to his vocational capabilities, the vocational expert opined: [The Veteran] last worked in April 2004, when he was driving tractor trailers. He was working part time, so he could structure his excessive absenteeism with his job. For this reason, he drove local distances also . . . There are no skills that he acquired here that are transferrable to lighter employment. He was in the U.S. Navy from 1989 to 1993 and functioned on board ship making sure that needed parts and supplies were unloaded and obtained. Here he kept some records and bookkeeping. While he may have learned some bookkeeping skills, those are now over 15 years old thus dated as well as not possible for him to perform due to the need to change positions at will. Prior to joining the navy, he pain[t]ed and wallpapered for a time. He also worked on construction for a month or two, but did not continue this line of work. [The Veteran] has no skills that would allow him to work from his past employment. It was indicated the Veteran could stand for 15 to 20 minutes, walk 1 block and sit for 1/2 hour at a time. He indicated he had 2-3 bad days per week when he would miss work, as well as a couple of times a year when his back gives out to the extent that he cannot even dress himself and such an exacerbation would last for "25 days or so." Mr. C.Y. concluded that the evidence of record indicated a severe back disability making "any employment exceedingly difficult to obtain." In June 2010, the Board denied entitlement to a schedular rating in excess of 20 percent, but, referred a claim for extraschedular consideration of a higher rating and entitlement to a TDIU to VA's Director of Compensation and Pension (Director) based on the reports provided by the Veteran's representative reflecting severe disability and interference with employment. Following administrative review, the Director noted the evidence of limited and painful motion with avoidance of heavy lifting, bending/twisting, prolonged standing and walking. The Director did not consider the effect on his employability to be marked and afforded probative weight to the VA examiner's opinion that there was available treatment that would allow for function with little or no pain or side effects and allow the Veteran to live a normal life. The Director found that the record is absent of evidence that the Veteran's disability is so exceptional or unusual that would render usage of the rating schedule impractical. As to the claim for a TDIU, the Director, on review of the entirety of the evidence, concluded the Veteran may not be able to work as a truck driver, but that treatment was available that would allow him to be employed in some other capacity and the evidence as a whole did not indicate the Veteran was totally unemployable under any circumstances. The Veteran's representative submitted a statement in December 2012 that the Director had not adequately considered the evidence provided in the private reports he submitted and that "even the VA examiner determined the Veteran could not work in his usual occupation and would require retraining." The claims have now returned to the Board for additional consideration. IV. Analysis The Veteran has a 20 percent schedular rating for his DDD with right sacroiliitis at L5-S1 and a 10 percent rating for right lumbar radiculopathy. There are higher ratings available under the diagnostic codes, but the Veteran's low back disability is not productive of such manifestations as determined by the Board in its June 2010 decision. As such, it cannot be said that the available schedular evaluations for the disabilities are inadequate on their face. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. at 218 (1995). The Board referred the claim to the Director in June 2010 on the basis of the private reports that the Veteran was severely disabled and rendered completely incapable of holding a job. The evidence provided by VA physicians suggests a moderate disability which causes pain, stiffness, numbness, weakness, along with other symptoms that affect the Veteran's daily life and preclude him from continuing employment as a truck driver. The medical evidence indicates the Veteran has not exhausted available treatment possibilities that could alleviate many of his symptoms. That being said, even without seeking treatment, the evidence does not support a finding that with retraining, that is available through VA to veterans with service-connected disabilities, the Veteran could not find and hold a job were he to seek one. As to the private reports submitted by the Veteran's representative, the Board finds they can be afforded little probative weight. Initially, the Board notes that the reports from Mr. D.L.C., Mr. C.Y. and Dr. C.K. were made solely in connection with claims seeking VA benefits. The Board is of course cognizant of possible self-interest in promoting a claim for monetary benefits. Although the Board finds Mr. D.L.C., Mr. C.Y. and Dr. C.K. competent to provide the information they provided, as explained, the Board finds the credibility of the reports lacking. The laundry list of functional impairments attributed to the Veteran's disability in Mr. D.L.C.'s report is not supported by the medical evidence of record upon examination of the Veteran. Nowhere else is it demonstrated that the Veteran's DDD with right sacroiliitis at L5-S1 and radiculopathy are causing poor postural integration, poor stability, motor skill deficiencies, poor coordination, poor gross motor control, decreased neuromuscular function, decreased biomechanical upper/lower body integration or severe/recurrent muscle spasms. The Veteran himself did not attest to such symptoms at either VA examination or at his hearing before the Board in 2008. In addition, upon review of Mr. D.L.C's statements, there is no indication that he reviewed any of the medical records in the claims file or that he himself medically examined the Veteran. His statements that the Veteran has no capacity of any kind to hold any employment are not supported by the rest of the record or any rationale beyond the blanket list of symptoms and impairments. Dr. C.K. indicated it was "at least as likely as not" that the Veteran was unemployable. This is not the proper standard. If it is at least as likely that he could work, the Veteran is not entitled a grant of additional VA disability benefits. The Board finds that Dr. C.K's report also lacks probative value because it does not conclusively indicate unemployability based solely on his lumbar spine disability and seems to focus more on the fact that the Veteran's DDD is connected to an injury in service which has already been established. Mr. C.Y. focused on the Veteran's lack of job training and that the Veteran's symptoms suggest that it would be difficult for him to find someone to hire him given his limitations and his lack of work experience outside the field of truck driving. As mentioned, inability to find a job is not the same as being unemployable. Consideration has been given to the Veteran's level of education and that his previous training and work experience was as a truck driver; however, the probative evidence of record does not convince the Board that if the Veteran were to seek available job training and find an appropriate job that took into account his limitations that his lumbar spine DDD and radiculopathy would render him incapable of performing the physical acts required by the job. The Board recognizes that the Veteran fears he would miss work due to flare-ups in his pain; however, there are jobs that do not require lifting, pushing, bending and pulling and that would allow the Veteran to move around as needed. The probative evidence suggests he is employable, although some vocations would not be appropriate, such as truck driving. The Board sympathizes with the Veteran and recognizes that he has been out of work for many years and experiences pain and discomfort on a daily basis. The Board notes that the Veteran is not alone and that help is available. The Veteran can seek further treatment options to alleviate his symptoms and improve his quality of life as noted by the VA examiner in August 2009. In addition, Vocational Rehabilitation training is available to him as a service-connected Veteran that will allow him to obtain the skills necessary to seek employment in a field other than truck driving. Because the preponderance of the evidence is against the claims, the benefit of-the-doubt doctrine does not apply and a higher rating on an extraschedular basis for DDD with right sacroiliitis and entitlement to a TDIU on an extraschedular basis must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An extraschedular rating for DDD with right sacroiliitis at L5-S1 is denied. A total disability rating based on individual unemployability, to include on an extraschedular basis, is denied. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs