Citation Nr: 1752434 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 01-02 618A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1974 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Agency of Original Jurisdiction (AOJ) for this case is the RO in Atlanta, Georgia. The Veteran testified before a Veterans Law Judge (VLJ) in March 2002 at the RO. She also testified before the undersigned VLJ via videoconference in June 2017. Transcripts of both hearings are associated with the claims file. This matter was previously before the Board in April 2003, December 2006, and July 2006 on issues that are no longer on appeal. In a July 2007 Joint Motion for Partial Remand (Joint Motion), while on appeal to the United States Court of Appeals for Veterans Claims (Court), the parties agreed that VA failed to adjudicate the Veteran's reasonably raised TDIU claim. In May 2008, the Board remanded the matter for further development, and in a December 2008 rating decision, the RO denied the claim. In May 2011, the Board again denied the Veteran's TDIU claim. She appealed the decision to the Court, which granted a May 2012 Joint Motion that vacated the Board's May 2011 decision, and remanded the case for compliance with the terms of the Joint Motion. The Board again remanded the case in March 2013 and October 2014 for further development. FINDING OF FACT The Veteran has not met the schedular rating criteria for entitlement to a TDIU during the appeal, and her service-connected disabilities do not prevent her from securing or following gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has not raised any issues with the duty to notify or 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 duty to assist argument). In October 2014, the Board remanded the case to: associate with the claims file outstanding records, including records from the Veteran's vocational rehabilitation folder; request that the Veteran or her attorney resubmit a January 2014 private vocational consultation report; schedule the Veteran for a VA examination; and, issue a supplemental statement of the case (SSOC) if any benefit was denied by the RO. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that her service-connected disabilities prevent her from securing or following gainful employment. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2017). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not 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. 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 a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. During the entire appeal period, the Veteran received VA compensation for service-connected varicose veins of the right lower extremity, rated as 40 percent disabling; post-operative residuals of hallux valgus of the left great toe, rated as 20 percent disabling; scar of the left great toe, rated as 10 percent disabling; and, a hammertoes deformity of the left second toe, rated as noncompensably disabling (zero percent). The combined evaluation of the Veteran's service-connected disabilities is 60 percent. Thus, the Veteran does not meet the criteria for establishing entitlement to a TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Nonetheless, 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. Therefore, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth for schedular consideration of entitlement to a TDIU. The rating board will include a full statement as to a veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award an extraschedular TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). As explained in more detail below, the Board determines that referral of the Veteran's claim to the Director of Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis is not necessary because the Veteran's service-connected disabilities, alone, do not prevent her from securing or following gainful employment. In determining whether the Veteran is capable of obtaining and maintaining gainful employment due to her service-connected disabilities, the Board must consider the Veteran's work history, education, and any special training. On her formal TDIU application (VA From 21-8940), received in May 2009, the Veteran reported that she last worked full-time as a psychiatric technician in October 1996 and that she became too disabled to work at that time. She indicated that she completed three years of college and received vocational rehabilitation in California in 1995. She further indicated that she was a personnel management specialist in the Army in 1975, had business administration training from 1982 to January 1987, and had clerical and computer training from 1995 to 1996. She indicated that she was treated by various doctors on a monthly basis since September 2000 due to blood clots in the right leg and severe left foot swelling and pain. Her medical treatment records show that her disability picture includes many nonservice-connected disabilities, as well as the service-connected right leg varicose veins and left toes disabilities. January 1992 private progress notes show that she had ongoing neck, right shoulder, and lower back symptoms stemming from April 1991 and October 1992 work injuries. A December 1995 private progress note showed that she was diagnosed with cervical spondylosis, chronic lumbar strain disease, possible double crush disease, cervical disc disease, carpal tunnel syndrome on the right, tension cephalgia, cervical root disease with C5-C6 radiculopathy, and chronic sprain of the right hip. Private treatment records from 1994 show that she was diagnosed with deep vein thrombosis (DVT) of the right lower extremity and was treated with Heparin and Coumadin therapy. An August 1997 private evaluation report showed that the Veteran was taken off work in July 1995 because modified work duties were unavailable to her. She attended vocational rehabilitation, which included accounting and computer courses, until July 1996; however, the vocational rehabilitation coursework resulted in bilateral hand and wrist pain and back pain. The evaluator determined that the Veteran's complicated medical history included multiple body parts and medical disorders, stemming from: an April 1991 injury to her neck, right shoulder, and lower back; May 1994 bilateral lower extremity symptoms; an August 1994 injury to the right knee; and, bilateral wrist symptoms from vocational rehabilitation training. A May 2000 VA examination for the Veteran's left foot and right leg showed that she wore a boot on the right leg due to ulceration of the skin. She also complained of aching, fatigue, and swelling, which occurred within minutes of standing and walking, at which time she had to elevate her right leg and use a compression hose. In a July 2003 letter, a private doctor noted that the Veteran ambulated with great difficulty and used a cane due to her DVT. She was noted to have lost range of motion of the ankle and knee, and was noted to be unable to sit or stand for prolonged periods of time without discomfort. However, this doctor also determined that the Veteran's inability to sit or stand for prolonged periods of time was compounded by her lower extremity arthritis and peripheral neuropathy. The doctor also noted the Veteran's history of hypertension, asthma, allergic rhinitis, and cervical radiculopathy. Additionally, many VA and private treatment records, as well as the December 2006 monthly case management report from vocational rehabilitation services, shows that the Veteran was diagnosed and treated for lupus, diabetes mellitus, type II, and arthritis in most joints. For example, various 2008 private rheumatology progress notes showed a history of rheumatoid arthritis, history of lupus, osteoarthritis in the hands and feet, osteophytes in the knees and hip, right shoulder bursitis, and hypertension. An April 2009 VA physical therapist note showed that she had multiple medical problems, poor conditioning, and significant lower back pain. Symptoms of lupus, bilateral knee swelling, and rheumatoid arthritis were also noted in a May 2013 VA physical therapy consultation note. Moreover, a June 2016 VA orthopedic surgery note showed that she had a history of diabetes mellitus, type II, diabetic neuropathy, lupus, irritable bowel syndrome, fibromyalgia. and lower back pain. A private vocational expert determined in a January 2014 private vocational assessment report that it is more likely than not that the Veteran is unemployable within the labor market based on her records since 1996. Specifically, this expert determined that the Veteran's DVT and varicose veins of the right lower extremity, as well as her post-operative residuals of a left great toe disability, required her to be able to sit or lay down at will. The vocational expert concluded that these disabilities prevented the Veteran from having an unskilled job. Additionally, this expert determined that the Veteran would not be able to work at a table or desk because she had to elevate her legs at the waist level. The expert concluded that the Veteran would not be able to work in a sedentary environment due to absenteeism, poor focus, and performance problems from pain. In contrast, a VA examiner determined in July 2015 that it is less likely as not that the Veteran's service-connected disabilities rendered her unable to obtain and retain gainful employment, irrespective of her age and nonservice-connected disabilities. After performing physical evaluations, noting the Veteran's medical history and service-connected disabilities, and recording her current symptoms, the examiner determined that the Veteran's combined service-connected disabilities caused no impediment to gainful employment. The examiner stated that the Veteran ambulated with a nanny walker and had an antalgic gait due to her nonservice-connected disabilities. The examiner explained that the Veteran was independent in her activities of daily living and mobility. For example, the examiner noted that the Veteran drove herself and her neighbor to the VA examination. The examiner also noted that the Veteran has not been deemed incompetent and that she had control over all of her finances. The Veteran's Social Security Administration (SSA) records show that she was determined to be disabled since October 1996 due to severe impairments of DVT with static dermatitis, degenerative disc disease (DDD) of the L5-S1 and C6-C7 spinal segments, bilateral carpal tunnel disease, and chronic right knee instability and weakness due to a meniscal tear. Additionally, although the Board acknowledges that the Veteran was determined to be medically infeasible to return to work by her vocational rehabilitation counselor as far back as 2004, her various vocational rehabilitation records also show that nonservice-connected disabilities impact her ability to work. For example, a December 1995 vocational rehabilitation report showed that she was injured on the job three times in the previous year. The evaluator noted that there were viable occupations in the Veteran's local labor market but that her medical restrictions would prevent her from using her transferable skills. While the evaluator indicated that her service-connected varicose veins and hammer toes disabilities restricted her capacity to lift, carry, stand, and walk, the evaluator also noted the Veteran's problems with hand grasping and gripping activities. In fact, the evaluator noted that the Veteran's nonservice-connected neck problems and wrist sprain limited her ability to function in a work environment. In her November 1999 vocational rehabilitation counseling record, the Veteran noted her previous work in personnel management and as an assistant administrator and psychiatric technician. She also noted that her back spasms, swelling, moderate to severe pain, and rheumatoid arthritis prevented her from standing, sitting, or walking for certain periods of time. A November letter shows that the Veteran was not approved for Chapter 31 vocational rehabilitation services because she indicated that she could not work and she did not want any independent living program services. Lastly, the lay statements of record also show that Veteran's current unemployability is not caused solely by her service-connected varicose veins, residuals of hallux valgus and a scar of the left great toe, and hammertoes of the left second toe. Specifically, in a May 2001 statement, she contended that she was unable to work because she could not stand, sit, or walk due to her right leg and left foot disabilities; however, she also indicated that she had DVT, cardiovascular disease, and phlebitis, which impacted her ability to work. During a March 2002 Travel Board hearing, the Veteran testified that she was denied vocational rehabilitation training in the past because she had too many medical problems. In a July 2006 statement, the Veteran asserted that she was unemployable due to the symptoms in her bilateral feet and legs. Specifically, she asserted that her lower extremities had varicose veins, swelling, pain, tingling, numbness, and poor circulation, which prevented her from sitting, walking, or standing for long periods of time. She also endorsed symptoms in her hips, knees, and ankles due to bilateral lower extremity swelling and pain and medication. During a July 2016 hearing before a decision review officer (DRO), the Veteran indicated that she used a walker or a cane every day to ambulate long distances and when she was in a lot of pain. She also testified that she suffered frequent falls, was able to stand for three to four minutes before sitting down and elevating her legs, and that she could not sit more than 10 or 15 minutes before standing. She indicated that she had a lot of pain and that she used lidocaine patches on a daily basis. The Board notes that a November 2016 VA progress note showed that the Veteran was seen for falls and problems with gain, as well as problems with her shoulder. She indicated that her unsteadiness and "wobbly" feeling stemmed from her knees more than her hips; however, she did not mention to the doctor that her right leg varicose veins or left toes' disabilities caused these symptoms. This doctor also noted the Veteran's use of lidocaine patches, but she used these patches on her hands due to osteoarthritis. During the June 2017 Board hearing, the Veteran again indicated that she used a cane and a walker in her house due to balance problems. She testified that she has cramps in her legs if she stands for too long, she needed to sit down in less than 10 minutes, and that she has to move a lot when she is sitting or lying. She stated that she took daily pain medication, including Vicodin and Duloxetine, which caused her to be drowsy, sleepy, and unable to concentrate. However, she indicated that she took pain medication for all of her physical pain, which included nonservice-connected lower back pain and symptoms in her arms and chest. Upon review of all lay and medical evidence, the Board finds that the Veteran's level of disability, given her education, training, and experience, would not render the average person unable to obtain or retain substantially gainful employment of some type based solely on her service-connected disabilities. Van Hoose, 4 Vet. App. at 363. Significantly, the evidence does not show that the Veteran's service-connected varicose veins, postoperative residuals of hallux valgus, a scar, and a hammertoe deformity, individually or in combination, preclude employability. While the Veteran experienced occupational impairment as a result of her service-connected disabilities, which was reflected in her combined total rating of 60 percent, the record does not indicate that she was unable to obtain or retain gainful employment due only to these disabilities. The Board recognizes that the Veteran has not worked since October 1996, and that she was deemed to be unemployable by SSA. However, as the evidence demonstrates, the Veteran's disabilities are numerous, and most of them are unfortunately not service-connected. The VA, private, SSA, and vocational rehabilitation records show that the Veteran has been treated for many nonservice-connected disabilities, including but not limited to diabetes mellitus, type II, lupus, allergic rhinitis, hypertension, asthma, arthritis of the cervical and lumbar spine, peripheral neuropathy, chronic bilateral knee and hip pain, carpal tunnel disease, rheumatoid arthritis, fibromyalgia, irritable bowel syndrome, and cervical radiculopathy. Thus, although the Veteran's service-connected disabilities cause some functional impairment, as evidenced by her combined 60 percent evaluation, they are not, in and of themselves, shown to preclude her participation in all forms of substantially gainful employment. In reaching this decision, the Board has considered the opinions of medical professionals, including the January 2014 private vocational expert and the July 2015 VA examiner. The January 2014 private vocational expert determined that "deep vein thrombosis/varicose veins" for the right lower extremity and residuals of hallux valgus disabilities precluded her from working in a labor-intensive and sedentary work environment while the July 2015 VA examiner determined that the Veteran's service-connected disabilities, without regard to her age and nonservice-connected disorders, did not preclude her from securing or following gainful employment. The Board has considered the opinions of these professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). The evidence of record tends to show that many of the Veteran's nonservice-connected disorders cause her to have an antalgic gait, use a cane and walker, and have frequent falls. Additionally, as shown by the evidence and the Veteran's testimony during the July 2016 DRO hearing and the June 2017 Board hearing, she has chronic pain throughout her body and uses daily medication due to nonservice-connected disorders, such as arthritis. Overall, the medical and lay evidence does not show that the Veteran is precluded from working solely due to her service-connected disabilities. Although there is some impairment as a result of her service-connected disabilities, the facts of this case are not outside the norm given her employment history, education (three years of college), and training. Thus, referral of the TDIU claim to the Director of the Compensation Service for extraschedular consideration is not warranted. Given these reasons, the Board finds that the Veteran's service-connected disabilities did not prevent her from securing or following gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a TDIU rating is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs