Citation Nr: 1751556 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 10-19 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1984 to May 1990 and from August 1993 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). In the May 2010 substantive appeal, the Veteran requested videoconference hearing. That hearing was held in February 2013 by a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. Because that VLJ is no longer with the Board, the Veteran was offered another hearing to be conducted by the undersigned in correspondence dated May 2017. Because he did not respond to that letter within 30 days, the Board assumes that he declined an additional hearing per instructions in that correspondence. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. The Board previously remanded the claim for further development in August 2013 and January 2017. Following the most recent Supplemental Statement of the Case, in February 2017, the Veteran furnished a waiver of RO review of newly received evidence. As such, the Board will not be remanding this case for review of evidence received after that date, as discussed below. See 38 C.F.R. § 20.1304(c). FINDING OF FACT The Veteran's disabilities cause occupational difficulties, but do not prevent him from pursuing gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.321, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA), in part, describes the VA's duties 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) (2016). The VCAA applies to the instant claim. The notice requirements have been met. VA's duty to notify was satisfied by a letter dated April 2016. See 38 U.S.C.A. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). That letter notified the Veteran of the information needed to substantiate and complete his TDIU claim, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's VA and private treatment records have been obtained. The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in August 2011, September 2011, April 2013, December 2015, April 2016, and June 2017. Additional VA opinions regarding the Veteran's employability were obtained in January and February 2017. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's unemployability in the examinations are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met and, accordingly, the Board will address the merits of the claims. Legal Criteria - TDIU An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background - TDIU Preliminarily, the Board notes that the Veteran meets the schedular requirements for consideration for TDIU under 38 C.F.R. § 4.16(a). He is currently rated at a combined 70 percent disability rating and additionally has one disability (intervertebral disc syndrome) rated at 40 percent. Therefore, the Veteran has met the schedular criteria for TDIU consideration. Private treatment notes show that the Veteran was still working in September 2007. In physical therapy notes dated December 2007 and January 2008, the therapist noted that the Veteran was "unable to perform specific work activities secondary to pain." During a VA examination dated January 2009, the examiner found that the Veteran's erection dysfunction symptoms did not affect his ability to work. In a VA psychological evaluation dated January 2009, the Veteran reported that he had suffered from a loss of interest in "usual activities," feelings of being highly limited in his activities "because of his chronic back difficulties and pain," and anxiety. Based on the Veteran's reported symptoms, the examiner opined that the Veteran "should be employable in the competitive market," finding that there "is no reason why he could not be involved in more sedentary employment in particular." During a VA examination dated August 2011, the Veteran reported that he had difficulty sitting for "any length of time." The examiner noted that the Veteran did not experience incapacity events, but he did experience significant radicular pain in the right leg. The examiner did not discuss the impact that this pain could have on the Veteran's occupation, noting instead that the Veteran was retired. During a VA psychological examination dated September 2011, the Veteran reported that he did not have a desire to go to work and had not attempted to find work since he left service. The examiner noted that this decision was a "personal choice." At that time, the examiner noted that the Veteran's psychological symptoms were mild and only affected his work efficiency during periods of significant distress. Private treatment records from June 2012 note that the Veteran's "previous occupation caused degeneration of muscle overtime." In February 2013, the Veteran testified that his back disability and sciatic pain prevented him from being able to work. He reported that he could not engage in "any athletic activity at all." He reported that when his right leg was in pain, he could not walk. Additionally, the Veteran reported that his psychological symptoms caused him to be irritable and depressed at times. He reported that he had not worked since he left service. During a VA examination dated April 2013, the Veteran reported that his main problem was that he had difficulty sitting for any length of time. He reported that these symptoms were worse than when he was last examined in September 2011. The examiner found, however, that the Veteran's back disability did not impact his ability to work. During a VA psychological examination dated April 2013, the Veteran reported that he was not looking for work, "not interested in working at this point in his life," and considered himself to be "fully retired." The examiner found that the Veteran's symptoms caused mild or transient symptoms which decreased his work efficiency and the ability to perform occupational tasks only during periods of significant stress. Private treatment records show that in June 2015, the Veteran underwent a cervical discectomy and fusion. During a December 2015 back examination, the Veteran reported that he reinjured his lower back and was treated in the emergency room in October 2015. He reported that he underwent three previous back surgeries. The examiner opined that the back disability inhibited the Veteran's ability to work by preventing him from driving for extended periods of time (more than an hour), unable to lift anything more than forty-five pounds, preventing prolonged standing, running, and high impact exercises. The examiner noted that the Veteran had to give up golf in 2007 due to his back pain. In an April 2016 examination report, the examiner noted that the Veteran's back condition would prevent him from doing "any job that required repetitive lifting, stooping, bending, excessive walking, or prolonged sitting." The examiner noted in a peripheral nerve examination at that same time, that that particular disability did not cause any occupational impairment. In a January 2017 opinion, a VA physician noted that the Veteran's erectile dysfunction caused no limitations in any employment "whatsoever." Similarly, the physician noted that the Veteran's scar was painless and asymptomatic and so caused no limitation on employability. Regarding the Veteran's back issue, the physician noted that at the time of the 2013 VA examination, the Veteran's range of motion testing was "for the most part normal." He noted that the limitation associated with the back condition caused discomfort. The physician noted that the Veteran had undergone three surgeries in association with his back condition that were successful and had had multiple MRI's to assess the severity of his back condition. Overall, the physician found that the Veteran was "able to maintain meaningful employment in a position that does not require heavy manual labor and allows for breaks to stand and stretch at his discretion. This can be clerical or office work." In a February 2017 opinion, a VA psychologist noted that the Veteran's depressive disorder "presents no occupational limitations." She noted that the Veteran had chronic depression, but the symptoms were not indicative of major depressive disorder. She noted that while the Veteran has symptoms of agitation and anxiety, his routine was normal, he had developed relationships with family, and his attention, concentration, thought processes, and analytical skills were all "good." In a June 2017 back examination, the examiner found that the Veteran's back condition prevented him from "lifting, pushing, or pulling objects." Analysis - TDIU Based on a review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. Notably, multiple examiners have noted that the Veteran's scars, his erectile dysfunction, and his right lower extremity neuropathy do not cause any impact on his occupational ability. In regards to the Veteran's back, the record shows that he has had at least three surgeries to address the painful symptoms from his condition. Examiners and treatment records show that the Veteran is limited in his ability to do some physical activities because of his symptoms. That said, none of the back examinations have shown that the Veteran is incapable of working. At least five examiners have found that while the Veteran's back disability causes physical limitations, it does not prevent him from obtaining or maintaining substantially gainful employment. In regards to the Veterans service-connected depressive disorder, the most severe symptoms documented in VA examination showed that his symptoms caused "mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress." The February 2017 psychologist's opinion noted that the psychological disability caused "no occupational limitations." Therefore, at most the Veteran's irritability, anxiety, and depression caused by his psychological disability would cause limitations at work, but would not prevent him from working. The record shows that the Veteran has not worked since he left service. It appears however that this is not because of his service-connected disabilities, but instead based on his own election. Treatment notes and examinations show that the Veteran reported that he did not want to find employment and considered himself to be "fully retired." Therefore, the Veteran's unemployed status is not evidence to support a finding that his disabilities cause his unemployment. With all of his disabilities together, the Board finds that the Veteran is still capable of obtaining and maintaining substantially gainful employment. While none of the Veteran's examinations has provided evidence to show that the Veteran is unable to obtain or maintain gainful employment, the Veteran himself reported during his hearing that his back disabilities prevent him from working. There is no doubt that the Veteran's back disability is significantly disabling and that he is limited in his physical capabilities, but the evidence contained in examinations and treatment records does not show that he is prevented from maintaining substantially gainful employment. The preponderance of the evidence is against the claim and, accordingly, the doctrine of equipoise does not apply. The Board fully appreciates the Veteran's honorable service, and while his current disability picture does not show that he is incapable of obtaining and maintaining gainful employment, he is welcome to reapply for TDIU in the future should he again contend that it is warranted. ORDER Entitlement to TDIU is denied. ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs