Citation Nr: 1535662 Decision Date: 08/20/15 Archive Date: 08/31/15 DOCKET NO. 12-10 633 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased disability rating for spondylolisthesis of the lumbar spine, currently evaluated as 40 percent disabling for limited motion of the lumbar spine. 2. Entitlement to an increased rating for associated neurological deficits of the right leg, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for associated neurological deficits of the left leg, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C.A. § 1114(s). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served for more than twenty years on active duty from January 1977 to January 1981, and from August 1981 to April 1999. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the RO that, in pertinent part, assigned a 40 percent disability rating for spondylolisthesis of the lumbar spine following the termination of a temporary total rating in May 2009; and denied a TDIU. The Veteran timely appealed. In October 2013, the RO assigned separate disability ratings of 10 percent each for radiculopathy of each lower extremity. Because higher evaluations are available for spondylolisthesis of the lumbar spine and for associated neurological deficits, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2015, the Veteran testified during a hearing before the undersigned at the RO. The issues of increased disability ratings for spondylolisthesis of the lumbar spine and its associated neurological defects of the bilateral lower extremities, and for entitlement to SMC pursuant to 38 U.S.C.A. § 1114(s), are remanded to the Agency of Original Jurisdiction. VA will notify the Veteran and his representative when further action is required. FINDINGS OF FACT 1. The Veteran's claim for TDIU was received on June 11, 2009. 2. The Veteran has not worked full-time since August 2005; he reportedly has completed four years of college, and has no additional training; he last worked as a technology/database administrator. 3. Service connection is in effect for a major depressive disorder with post-traumatic stress disorder (PTSD), rated as 30 percent disabling from May 2004 and as 70 percent disabling from April 2012; for sleep apnea, rated as 50 percent disabling; for fibromyalgia, rated as 40 percent disabling; for spondylolisthesis, rated as 40 percent disabling from May 2009 (excluding a temporary total rating from January 15, 2009, to April 30, 2009); for status-postoperative cervical fusion from C4-C7, rated as 20 percent disabling from July 2005 and as 30 percent disabling from June 2009 (excluding a temporary total rating from February 1, 2010, to April 30, 2010); for radiculopathy of the left lower extremity, rated as 10 percent disabling; for radiculopathy of the right lower extremity, rated as 10 percent disabling; for scar laceration of the right ring finger, rated as 10 percent disabling; and for residual surgical scars, each rated as 0 percent (noncompensable) disabling from April 2012. The combined disability rating is 90 percent from May 25, 2004; 100 percent from February 1, 2010; 90 percent from May 1, 2010; and 100 percent from April 19, 2012. 4. The Veteran's service-connected fibromyalgia and depression are shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met from June 11, 2008 forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran brought his claim for a TDIU in June 2009. Through a January 2010 letter, the RO notified the Veteran of elements of a TDIU claim and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim, to include the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the employment records and outpatient treatment records; and has arranged for VA examinations in connection with the claim decided on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. TDIU Benefits Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In this case, the Veteran has completed four years of college education, and has had no additional education and training. He reportedly worked as a technology-database administrator full-time from March 1999 to August 2005. His former employer confirmed that the Veteran last worked in August 2005. Service connection is in effect for a major depressive disorder with post-traumatic stress disorder (PTSD), rated as 30 percent disabling from May 2004 and as 70 percent disabling from April 2012; for sleep apnea, rated as 50 percent disabling from November 2001; for fibromyalgia, rated as 40 percent disabling from May 2004; for spondylolisthesis, currently rated as 20 percent disabling from July 2005 and as 40 percent disabling from May 2009 (excluding a temporary total rating from January 15, 2009, to April 30, 2009); for status-postoperative cervical fusion from C4-C7, rated as 20 percent disabling from July 2005 and as 30 percent disabling from June 2009 (excluding a temporary total rating from February 1, 2010, to April 30, 2010); for radiculopathy of the left lower extremity, rated as 10 percent disabling from January 2004; for radiculopathy of the right lower extremity, rated as 10 percent disabling from January 2004; for scar laceration of the right ring finger, rated as 10 percent disabling from July 2005; and for residual surgical scars, each rated as 0 percent (noncompensable) disabling from April 2012. The combined disability rating is 90 percent from May 25, 2004; 100 percent from February 1, 2010; 90 percent from May 1, 2010; and 100 percent from April 19, 2012. Hence, the Veteran meets the threshold percentage requirements for consideration of a TDIU since prior to the date of his June 2009 claim. By way of history, the Veteran first filed a formal TDIU claim in September 2005, which was denied by the RO in an April 2007 rating decision on the basis that his service-connected disabilities did not prevent sedentary employment. He did not appeal this determination. Therefore, it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). The Veteran next filed a formal TDIU claim in June 2009. The effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1) (2015). The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). Therefore, the appellate period before the Board for the TDIU claim on appeal is from June 11, 2008, which is one year before the Veteran's formal claim for TDIU. For the period from January 15, 2009, to April 30, 2009; and for the period from February 1, 2010, to April 30, 2010, the combined disability ratings were 100 percent, and the Veteran then was entitled to special monthly compensation pursuant to 38 U.S.C.A. § 1114(s). Given that total disability ratings with SMC at the 38 U.S.C.A. § 1114(s) rate were in effect, his TDIU claim is moot for each of these periods. See, e.g., Bradley v. Peake, 22Vet. App. 280 (2008). The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable from June 2008 forward, excluding those periods where the maximum benefit is already in effect. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. Following active service, the Veteran was employed as a technology/database administrator. The report of a May 2005 VA examination reflects that he worked at a desk job, and followed "ergonomic training." The Veteran reportedly worked at a computer all day. In July 2005, the Veteran's treating physician, Dr. E., noted the Veteran's subjective symptoms when sitting at his desk for approximately one hour; and found objective evidence of multiple trigger points and muscle pain consistent with fibromyalgia. Dr. E. noted that the Veteran's impairment caused him considerable pain in the upper back and numbness in his arms and hands when seated and operating a computer all day; and noted that the Veteran's symptoms increased as the day working on his computer progressed. Dr. E. opined that the Veteran's fibromyalgia was a permanent condition with a long-term impact on the Veteran's working in a position requiring him to sit for long periods of time (over one hour); and that the condition also impacted the Veteran's recreational activities as well, and substantially limited his major life activity of working. Dr. E. also opined that the Veteran suffered from major depression, which further compounded his fibromyalgia. Social Security records, dated in July 2006, show that the Veteran became entitled to monthly disability benefits beginning in February 2006. During a January 2007 VA examination, the Veteran reported being "let go" from work in August 2005 due to medical reasons (inability to work) and that he took twelve weeks of FMLA (Family Medical Leave Act). He then sought a change in position based upon his health, but there was no position available to accommodate his medication and physical needs. The Veteran reported that his job required him to sit working at a computer 8 hours a day; and that the longer he was in one position, the more his muscles tightened and added to his pain and depression. The Veteran reportedly was less able to concentrate on his work, and contended that his unemployment was due to mental disorder effects. The January 2007 examiner opined, however, that the Veteran's unemployment apparently was for fibromyalgia. The report of a February 2007 VA examination reflects that the Veteran retired from working in August 2005 due to medical (physical) problems, including spine and fibromyalgia. The February 2007 examiner noted the impact of the Veteran's service-connected spondylolisthesis of the lumbar spine as restricting physical labor, but not sedentary work "such as performed in his previous employment." The report of a July 2010 VA examination reflects that the Veteran retired from working in August 2005 due to medical problems (physical and psychiatric), including fibromyalgia and depression. In June 2015, the Veteran testified that he originally was denied a TDIU at a time when his claims for service connection for fibromyalgia and for depression were still on appeal; and that when service connection for fibromyalgia and for depression eventually was awarded, such disabilities were never "taken into account when making the decision on [TDIU] going all the [way] back to September 2005." While this is true, that TDIU was not spontaneously reconsidered when additional service-connected disabilities were established in 2011 and 2012, the fact remains that TDIU was denied in April 2007 and not appealed. The next claim for TDIU was not received until June 2009. Therefore, that service connection was retroactively awarded to 2004 is of no consequence in determining the effective date of TDIU which has been established on the basis of the current 2009 claim. Likewise, the mere fact that the Veteran was unemployable in 2005 does not mean that an effective date of 2005 is warranted. The Veteran did not appeal the 2007 denial of TDIU, the decision became final, and the new claim for TDIU was not received until June 2009. The Board may look to the year prior to the formal claim, pursuant to 38 C.F.R. § 3.400(o), but cannot look further back, despite factual unemployability being established in August 2005. To be clear, benefits are granted based on when claims are received, not on when the facts establish entitlement. Several treating physicians and the Social Security Administration have described total occupational impairment during the relevant period on appeal for TDIU (June 2008 forward). The Veteran has asserted that he is unemployable due to his service-connected disabilities. To this extent, his statements are of some probative value. Significantly, the Board finds that the severity of the Veteran's fibromyalgia, as well as his depression, have been corroborated by his treating physicians. The evidence overall reflects that the Veteran's service-connected fibromyalgia and depression cause total occupational impairment. Under these circumstances, and resolving doubt in the Veteran's favor, the Board concludes that his lay assertions combined with evidence of significant physical limitations and depression, and the opinions by treating physicians, demonstrate that the Veteran is unable to obtain or maintain gainful employment as a result of his service-connected fibromyalgia and depression. Hence, TDIU benefits are awarded from June 2008 forward. 38 U.S.C.A. § 5107(b). It is noted that a Social Security letter in support of TDIU was received after the Veteran's June 2015 hearing. In this case, the benefit to which the evidence relates is fully allowed, and therefore neither remand nor a waiver of RO consideration are necessary pursuant to 38 C.F.R. § 20.1304 (2015). ORDER Entitlement to a TDIU is granted, effective June 11, 2008, subject to the regulations governing the award of monetary benefits. REMAND At the June 2015 hearing, the Veteran submitted evidence that reflects that he became entitled to monthly Social Security Administration (SSA) disability benefits beginning in February 2006. Prior to that point, the record contained only a May 2012 letter notifying the Veteran of his denial of SSA benefits. The medical evidence (other than VA records) that was used by SSA to award disability benefits, and any recent evaluations should be obtained. The Court has held that when VA is put on notice of the existence of relevant SSA records, VA must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992). It appears that the Veteran's last compensation examination for his back and associated radiculopathy was in 2007. During his hearing, he indicated having several incapacitating episodes that prevented him from leaving home, and an increase in pain symptoms. As the Veteran has demonstrated a likely worsening since the last examination, additional examination is now warranted. Lastly, the Court held that a TDIU rating could serve as the "total" service-connected disability, if TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to special monthly compensation as provided in § 1114(s). Accordingly, the Veteran may be entitled to special monthly compensation as provided in § 1114(s), if he is found to be unemployable due solely to one of his service-connected disabilities and there is additional service-connected disability or disabilities that are independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See Bradley, 22 Vet. App. at 292-94. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent evidence related to his claim for increased ratings for his spondylolisthesis of the lumbar spine and associated neurological deficits. If additional treatment sources are identified, the AMC should secure any necessary authorizations, obtain the treatment records not already on file, and incorporate these records to the claims file. 2. Undertake appropriate action to obtain copies, from SSA, of any determination on the Veteran's claim for disability benefits (to include any readjudications) and the medical records (other than VA records) used as a basis of the award after his 2012 denial, and any recent evaluations. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records identified in paragraphs (1) and (2) above, it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Obtain the Veteran's outstanding VA treatment records, from September 2013 forward; and associate them with the Veteran's claims file. 4. After the above development has been completed, to the extent possible, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected low back disability, to include the associated radicular (neurological) symptoms. A review of the entire record, to include VBMS and Virtual VA, must be conducted. Any indicated studies should be performed. 5. Thereafter, readjudicate the claims on appeal, to include consideration of whether the Veteran may be entitled to SMC as provided in § 1114(s). If the benefits sought are not fully granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by VA. 38 C.F.R. § 3.655 (2015). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs