Citation Nr: 1719906 Decision Date: 06/05/17 Archive Date: 06/21/17 DOCKET NO. 07-29 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). WITNESSES AT HEARINGS ON APPEAL The Veteran and Dr. E.T. ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran had active service from January 1980 to March 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision from the United States Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. This matter has a rather complex procedural history. In November 2008, the Veteran testified at a Board hearing before one of the undersigned Veterans Law Judges (VLJ), in support of her claim for a disability rating in excess of 40 percent for her service-connected lumbar spine disability. In a July 2011 decision on the merits, this claim was denied. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 Memorandum Decision, the Court vacated the Board's July 2011 decision, in relevant part, on the basis that the Board failed to consider TDIU when evaluating the increased rating claim. This matter was returned to the Board, where it underwent several remands for the development of additional evidence. In October 2015, the Veteran, through a private attorney, requested a second Board hearing. A second Board hearing was conducted in December 2015 before another of the undersigned VLJs. Although the Veteran was not present at this hearing, Dr. E.T., a private psychologist, offered testimony regarding the Veteran's physical status and limited functional ability due to her lumbar spine disability. Dr. E.T. also prepared an independent medical evaluation, which was submitted at the hearing along with a waiver of initial RO review. In a July 2016 Board decision, this matter was remanded and referred to the Director of Compensation Service for extraschedular TDIU consideration. See 38 C.F.R. § 4.16(b). The Director's decision denying TDIU on an extraschedular basis was rendered in February 2017 and the matter was returned to the Board for appellate review. Having reviewed the record, the Board finds that there has been substantial compliance with its prior remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). By law, VLJs who participate in hearings must participate in making the final determination of the claim involved. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2016). Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C.A. § 7102(a) (West 2014). When a Veteran has been afforded a hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ must be assigned to the panel. The Court has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Here, this was fully explained to the Veteran's private attorney at the December 2015 Board hearing. The attorney indicated that the Veteran did not desire a hearing before the third member of the decision panel. Accordingly, VA has complied with the requirements set forth in Arneson. 38 C.F.R. § 20.700(a). In March 2017, prior to certification of the appeal to the Board, the Veteran's private attorney withdrew representation of the Veteran before VA. 38 C.F.R. § 14.631(c). In April 2017, VA notified the Veteran of her right to request a change in representation. The Veteran has not appointed a new representative. FINDINGS OF FACT 1. The Veteran does not meet the schedular criteria for a TDIU. 2. The Veteran's service-connected disabilities are not shown by the competent evidence of record to result in an inability to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's duties to notify and assist With respect to the only issue now remaining, neither the Veteran nor her prior attorney representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There are also no allegations that the undersigned VLJs who conducted hearings in November 2008 and December 2015 failed to comply with the duties set forth in Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). II. TDIU Laws and Regulations VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service connected disabilities, there must 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). During the appeal period, the Veteran has been in receipt of a 40 percent rating for a lumbar spine disability and a 10 percent rating for residuals of a right hallux varus surgery. Accordingly, her combined disability rating is 50 percent which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a schedular TDIU. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of 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). The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). The sole fact that the 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 and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to her age or to any impairments caused by her nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). III. TDIU Analysis As noted above, the Board remanded this case for an opinion from C&P on the question of extraschedular TDIU. A negative opinion was provided in February 2017. This determination is not evidence, but merely another adjudication of the claim, and the Board will now review all the evidence, on a de novo basis, to determine if the benefit is warranted. See Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran contends her service-connected lumbar spine disability and right foot disability render her unable to obtain or maintain substantially gainful employment. However, after carefully considering the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to an award of an extraschedular TDIU. In 2001, the Social Security Administration (SSA) found the Veteran to be disabled due to numerous health conditions including diabetes mellitus with neuropathy, a congenital left foot deformity, and her service-connected lumbar spine disability. Accordingly, the Board gives no probative weight to the award of Social Security disability benefits because it was predicated upon consideration of several nonservice-connected disabilities, and cannot serve as probative evidence that the Veteran's service-connected disabilities alone render her unemployable. Moreover, an award of SSA disability benefits is predicated upon different laws and regulations than the VA's TDIU benefits. The SSA adjudicator found that the Veteran retained the residual functional capacity to perform sedentary work, including lifting/carrying up to 10 pounds; standing/walking 2 hours in an 8 hour workday; and sitting 6 hours in an 8 hour workday with a sit/stand (at will) option. While this level of functional ability may support a finding of permanent disability under SSA law, for VA purposes it serves as compelling evidence that the Veteran maintains the capacity to perform sedentary employment. The record reflects that the Veteran graduated from high school and has one and half years of post-secondary education. The Veteran never completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on unemployability, sent to the Veteran in July 2006, and the VA Form 21-4192, Request for Employment Information, was returned blank and did not include any employment information. According to various sources of record, the Veteran has not maintained gainful employment since the early 1990s. However, her 1999 VA medical records document that she has experience writing poetry, song writing, and working on a computer. In adjudicating this claim, the Board has considered the limited information of record addressing the Veteran's past educational and employment history. To the extent that information is incomplete or inaccurate, that is a result of the Veteran's failure to provide that information when VA requested it. The Board acknowledges that the Veteran now has advanced Alzheimer's dementia with behavioral disturbance, substantially limiting her cognitive abilities and quality of life. However, this condition is not service-connected, and the record does not contain any medical evidence suggesting that this malady is in any way related to the Veteran's military service. Unfortunately, the functional and mental limitations caused by this condition cannot be considered in this adjudication. In December 2013, the Veteran was afforded a VA examination of her service-connected lumbar spine and right foot disabilities. Following examination of the lumbar spine, the examiner opined that the Veteran would be unable to perform any heavy lifting or repetitive bending at the waist, but ultimately concluded there would be no restrictions in sedentary work. Similarly, following examination of the Veteran's right foot disability, the examiner found that the Veteran would have difficulty with prolonged walking, but would not be precluded from sedentary work. These opinions were issued following a complete review of the Veteran's claims file as well as a thorough physical examination. Accordingly, the Board finds these opinions adequate and probative in adjudicating the Veteran's claim for an extraschedular TDIU. At the December 2015 hearing, Dr. E.T. testified that the Veteran would be unable to maintain or sustain gainful employment at any exertional level due to her lumbar spine disability and the side effects of her pain medication. The Board interprets Dr. E.T.'s testimony and associated report as placing undue significance on the side effects associated with the pain medicines prescribed to the Veteran for her lumbar spine disability, without any corroborating evidence that the Veteran was actually experiencing such side effects. While a particular medication may have known side effects, this evidence by itself is irrelevant when it cannot be shown that the Veteran, in fact, suffers from those side effects. Based on a thorough review of the medical evidence, there is no compelling evidence that the Veteran ever experienced the medication side effects discussed by Dr. E.T. during her testimony. In addition, Dr. E.T.'s November 2015 independent medical report includes a comprehensive recitation of the Veteran's relevant medical records, without any references proving the Veteran exhibited medication side effects. Dr. E.T.'s testimony on medication side effects was speculative in nature and is entitled to little probative weight. Similarly, Dr. E.T.'s opinion relies heavily on the conclusion that the Veteran experienced significant low back pain. However, the Veteran's VA treatment records from February 2014 to June 2016 indicate she was experiencing pain levels described as "0" and "1" on a scale of 1 to 10. See VA treatment records, 2/24/14, 9/22/14, 11/25/14, 4/29/15, 11/19/15, 2/25/16, and 6/14/16. Moreover, Dr. E.T.'s opinion was formulated without examining or interviewing the Veteran. Based on the above considerations, the Board assigns Dr. E.T.'s testimony and independent medical report very little probative weight due to its lack of a reasoned rationale that is supported by the underlying medical history/evidence. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Board has considered the opinion of Dr. E.T. to the extent it discusses the Veteran's symptoms and functional impairment, but, as discussed more fully above, the opinion is not adequate, primarily because it is not in accordance with what is shown in the Veteran's medical records. The Board recognizes that the Veteran's advanced Alzheimer's dementia with behavioral disturbance has rendered her incapable of obtaining and maintaining substantially gainful employment; however this condition is not service-connected and regretfully cannot be considered in adjudicating her claim for an award of extraschedular TDIU. Here, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude her from obtaining and maintaining all forms of substantially gainful employment. A review of the probative medical evidence of record establishes that the Veteran's service-connected lumbar spine and right foot disabilities are not of such a severity that they preclude her from engaging in sedentary employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board acknowledges the Veteran's honorable service to our country and is sympathetic to the Veteran's circumstances; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board is grateful to the Veteran for her honorable service and regrets that a more favorable outcome could not be reached. ORDER Entitlement to a TDIU is denied. MICHAEL A. HERMAN L. HOWELL Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs