Citation Nr: 1751095 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-33 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to 1973. Prior service is also noted. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 29, 2009, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2015, the Veteran testified during a videoconference hearing before the undersigned. A transcript of the hearing is of record. In July 2015, the Board found that the evidence and contentions of record reasonably raised the issue of a TDIU. The issue was remanded for further development, and the Veteran subsequently filed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability.) The agency of original jurisdiction (AOJ) substantially complied with the July 2015 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to August 28, 2014, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU, and extraschedular consideration is not warranted. 2. Since August 28, 2014, the Veteran has met the schedular criteria for consideration of a TDIU, and during this time he has been precluded from substantial and gainful employment due to his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for an award of a TDIU have been met since August 28, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), VA has a duty to provide notification to a claimant with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Board acknowledges that no VCAA notice was provided to the Veteran with respect to the claim for a TDIU. Rather, the Board took jurisdiction over the Veteran's claim in a July 2015 Board decision as part and parcel of his increased rating claims. After the Board remanded the claim, the RO did send the Veteran letters in November 2015 and December 2015 soliciting evidence needed to substantiate his claim, such as information from his last employer. The claim was then adjudicated in a February 2017 Supplemental Statement of the Case (SSOC), which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice. Rather, both the representative and the Veteran have submitted statements with evidence submissions indicating a clear understanding of what is needed to satisfy his claim, including a VA Form 21-8940. The record also reflects that VA has made efforts to assist the Veteran in the development of his claim. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records (STRs), VA medical records, private medical records, VA examination reports, and the statements of the Veteran. II. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that an average person is unable to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. 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 that 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. TDIU prior to August 28, 2014 While the Veteran submitted a claim for TDIU in November 2015, the claim can be construed as part and parcel of the previously decided increased rating claims that have been filed since December 2007. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). From November 11, 1999, to May 6, 2008, the Veteran's service-connected disabilities included right ankle strain, rated as 10 percent disabling; chronic low back pain, rated at 20 percent disabling; chronic sinusitis with headaches, rated as 10 percent disabling; and left varicocele, rated as 0 percent disabling. His combined rating was 40 percent. Therefore, the Veteran does not meet the schedular criteria for a TDIU for this period. From May 7, 2008, to August 27, 2014, the Veteran's service-connected disabilities included right ankle strain, rated as 20 percent disabling; chronic low back pain, rated at 20 percent disabling; chronic sinusitis with headaches, rated as 10 percent disabling; and left varicocele, rated as 0 percent disabling. His combined rating was 40 percent, and the Veteran does not meet the schedular criteria for a TDIU for this period. The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (C&P) to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 111. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. Id. Specifically, the Veteran's representative has alleged that the Veteran's service-connected right ankle condition was ultimately a contributing factor to the amputation of his left leg below the knee. See September 2017 Information Hearing Presentation. However, service connection for the left leg amputation secondary to the service-connected right ankle condition was denied in an unappealled July 2015 Board decision. Additionally, private treatment records dated from 2004 document problems with infections in the Veteran's lower extremities due to non-service connected diabetic neuropathy, which ultimately resulted in the amputation of his right great toe in August 2008, followed by amputation of all toes on the right foot, and a partial amputation of the left forefoot thereafter. In July 2011, a left below the knee amputation was performed. While the Veteran's representative has alleged that the Veteran's right ankle ankylosis, chronic back pain, and chronic sinusitis may warrant extraschedular consideration, neither the representative nor the Veteran has identified specific symptomatology whatsoever to support that assertion. A review of the record reveals that during the entire appellate period, the Veteran's right ankle disability manifested as, but not limited to, limitation of motion, pain, and swelling. Ankylosis of the right ankle was not present until a March 2017 examination. The Veteran's low back pain manifested as, but not limited to, pain, weakened movement, swelling, and limitation of motion. His chronic sinusitis manifested as, but not limited to, nasal congestion, sinus pain, swelling of the nasal passages, and discharge. As the Veteran has not identified any additional symptomatology to support his claim for extraschedular consideration, the Board finds that the Veteran's service-connected disabilities have been adequately contemplated by the individual schedular ratings, and no exceptional disability picture exists. As such, further analysis under Thun is not necessary. See Doucette v. Shulkin, 28 Vet. App. at 366. There is no doubt to be resolved and therefore referral to the C&P Director for extraschedular consideration is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. TDIU from August 28, 2014 The Veteran has met the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU, since August 28, 2014. Effective August 2014, the Veteran was service connected for right lower extremity radiculopathy, rated at 40 percent disabling; left lower extremity (sciatic nerve) radiculopathy, rated at 20 percent disabling; right ankle strain, rated as 20 percent disabling; chronic low back pain, rated at 20 percent disabling; chronic sinusitis with headaches, rated as 10 percent disabling; and left varicocele, rated as 0 percent disabling. Effective August 2014, the Veteran had a combined 80 percent rating with a bilateral factor, including the 40 percent rating for right lower extremity radiculopathy. 38 C.F.R. § 4.16(a). His most recent employment was as a paraprofessional assisting adults with intellectual disabilities for 4 years. This employment ended in October 2008. During his March 2015 videoconference hearing, the Veteran stated he was unable to work due to his service-connected disabilities. The evidence in support of the Veteran's claim includes records from VA and private treatment records, including a VA treatment record dated September 2015 that indicated the Veteran was medically disabled from any occupation at that time. In addition, records received from the Veteran's previous employer dated December 2015 indicate an inability to maintain employment due to medical illness. Prior to his employment as a paraprofessional, the Veteran worked in heating and cooling until 1999. In weighing the lay and medical evidence of record, as well as the Veteran's education and work history in the field of heating and cooling and as a paraprofessional, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in another profession or field. The medical evidence of record indicates that his physical health, particularly his bilateral radiculopathy, right ankle ankylosis, and chronic low back pain prevents him from being able to perform work that requires periods of walking, lifting, and sitting. However, given the Veteran's brief college education and work history performing heating and cooling and as a paraprofessional, the Board finds that it is unlikely that the Veteran is capable of obtaining sedentary employment, as he has neither the qualifications nor work experience for a position such as an office job or other light employment. Based on the foregoing, and resolving remaining reasonable doubt in the Veteran's favor, the Board finds that that it is reasonably shown that by virtue of his service-connected disabilities, the Veteran is precluded from participating in any substantially gainful employment consistent with his education/training and experience, and that a TDIU rating is warranted from August 28, 2014, the date which the Veteran met the schedular requirements for TDIU consideration. ORDER A TDIU is granted from August 28, 2014. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs