Citation Nr: 1752663 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to a service-connected cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. D'Allaird, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied a rating in excess of 40 percent for the Veteran's service-connected cervical spine disability. In May 2012, the Veteran filed a notice of disagreement (NOD) with the denial. In August 2012, the Veteran filed a formal claim for a TDIU (via a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability), specifically identifying the cervical spine disability as the source of his inability to work. In January 2014, the RO issued a statement of the case (SOC) addressing the matters of entitlement to an increased rating for a cervical spine disability and TDIU. In February 2014, the Veteran perfected an appeal via his submission of a timely VA Form 9 with respect to the denial of a TDIU only. This appeal is now in the jurisdiction of the RO in Louisville, Kentucky. In June 2016, the Board remanded the matter for additional evidentiary development. A review of the record shows that the RO substantially has complied with all remand instructions. Neither the appellant nor his representative has argued otherwise. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in his his February 2014 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. A hearing was scheduled in January 2015; however, that hearing was postponed. The hearing was rescheduled for June 2015; however, the Veteran withdrew his request for a hearing at that time. Absent a further hearing request, the Board will proceed with consideration of the claim based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). FINDING OF FACT The Veteran's service-connected disabilities, to include his service-connected cervical spine disability, do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include as a result of the service-connected cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veteran has raised no issues with the duty to notify or the 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). II. Legal Criteria VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain 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. Van Hoose, 4 Vet. App. at 363. When, after careful consideration of all relevant evidence, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. Reasonable doubt is one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Facts The Veteran submitted a statement in March 1988 stating that his neck pain caused problems with certain types of employment. He stated that it forced him to discontinue his job because of headaches, stiffness, etc. The Veteran was afforded a VA examination in February 2007. The examination report stated that the Veteran's neck disability had a significant effect on his usual occupation, resulting in increased absenteeism. The effects of his disability on his occupation were listed as lifting and carrying, lack of stamina, weakness or fatigue, and pain. The Veteran was again afforded a VA examination in January 2011. The examination report reflected the reason given for unemployment was "seeking employment." In May 2012 correspondence, the Veteran stated that his disability was stopping him from finding a job. He stated that he had not worked in a year and half. The Veteran further stated that when he applies for jobs, he lists his disability but never gets a response. He also stated that he thought his disability and age were big factors in not finding a job. In his application for a TDIU dated in August 2012, the Veteran reported that he had last worked in 2010 as a machine operator. He also stated that he had lost 30 days of work from illness. In an August 2012 statement, the Veteran indicated that he had tried a couple different jobs, including lifting sheetrock, lumber, and shoveling. He reported that his neck and shoulders would become very painful. He further stated that he would need a few days to be able to do anything again. He also stated that not being able to find work has been due to his disability and his age "is a big factor." A lay statement submitted by B.O. in August 2012 stated that the Veteran had performed physical manual labor at several of her rental properties over several years. B.O. wrote that over the last few years, "his ability to perform heavy and tedious physical labor has been hampered by his disabilities. He can no longer perform such tasks as lifting and moving heavy objects that require manual dexterity for prolonged periods of time." An employment information form submitted by his last employer and dated in October 2012 reported the Veteran last worked in November 2010. It also stated that the Veteran quit his job. The Veteran submitted a VA Form 9 (substantive appeal) in February 2014. The Veteran stated that "I agree some days I have more problems than other days....I was told years ago I could not lift more than 25 lbs. but I chose to work for 25 years instead of going after more from the VA." He further stated "I'm 59 years old, a bad neck, left arm and have problems with my left shoulder and left knee because of injuries from the US Navy." The Veteran was afforded another VA examination in July 2014. The Veteran reported last working in 2011 and that he lost his lost his job due to disagreements with management. He further reported that he had worked intermittently since then, mowing lawns and performing handyman work. The examination report reflects the Veteran's muscle strength testing revealed 5/5 for right and left elbow flexion and extension, right and left wrist flexion and extension, and right and left finger flexion and extension. The examiner stated the Veteran is unable to perform duties requiring him to gaze upward with his head tilted up more than 10 degrees for more than 10 minutes, or to work with either hand above the level of his shoulders for more than five minutes at a time; and lifting with the upper extremities is limited to 40 pounds occasionally and 20 pounds repeatedly. The examiner opined that "[t]he Veteran's cervical spine condition does not render him unemployable for active nor sedimentary [sic] employment." SSA records dated in October 2015 reflect the Veteran reported that he could no longer "walk much, stand, lift, run, hunt, work like I could before." He also reported that sometimes it was hard to get dressed and that when his knees hurt, it was hard to get in and out of the shower. He further reported that he stopped working because of his condition. He reported that in his last job as line leader, he ran equipment, bagged powder, cleaned, and supervised over five others. He reported the heaviest weight lifted being 50 pounds and the weight he most frequently lifted was less than 10 pounds. The Veteran also reported that he stopped working in November 2010 because he was fired from work. SSA records dated in December 2015 reflect the Veteran underwent a medical examination as part of his application for social security disability benefits. The examination report states that the Veteran had been working at a factory for ten years but stopped working not because of medical issues, but because he was terminated. The examination report states that he can lift 20 pounds repetitively, perform his own hygiene, cook, clean, shop, drive and manage money. The Veteran reported being able to stand 20 to 30 minutes without having to sit, and sit one or two hours without having to move. The examiner opined that based on his examination, it appeared the Veteran had the ability to perform activities involving sitting, standing, moving about, lifting, carrying, handling object with both hands including writing, sitting, buttoning, and picking up small objects, kneeling, squatting, hearing, and speaking. The examiner stated that it would be reasonably expected that the Veteran would have some difficulty with heavy lifting, but all other activities appeared tolerable. In SSA records dated in March 2016 the Veteran reported his pain was located in his neck, arms, back and knees. He reported taking ibuprofen to treat his pain. He reported no longer being able to stand for long times, walk, climb, or kneel down. The Veteran also reported doing all the household chores and shopping for the household. The Veteran further reported trouble breathing. The Veteran's claim for social security disability was denied on reconsideration in March 2016. IV. Analysis The Veteran is service-connected for a cervical spine injury at 40 percent, left clavicle fracture at 0 percent, left scapula fracture at 0 percent, left ear scar at 0 percent, and a left index finger skin graft at 0 percent. His combined disability rating is 40 percent. Therefore, the Veteran does not meet the schedular criteria for TDIU. See 38 C.F.R. §§ 3.340; 3.341, 4.16(a). Although the Veteran does not meet the percentage standards for TDIU under section 4.16(a), 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). The Board has considered whether the Veteran's TDIU claim should be referred to the Director of VA's Compensation and Pension Service for extraschedular consideration. Where the schedular requirements for TDIU are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. The Board submits all cases in which a veteran is unemployable due to service-connected disability, but fails to meet the schedular criteria, to the Director of the Compensation and Pension Service for extra-schedular consideration. See 38 C.F.R. § 4.16. In this case, however, the Board concludes that the evidence demonstrates that the Veteran is not prevented from obtaining or maintaining substantially gainful employment solely because of his service-connected cervical spine disability or, indeed, his service-connected disabilities as a whole. The Veteran has stated that he is unable to work due to his age and disability. A statement from B.O. also stated that the Veteran cannot perform manual labor due to his disability. However, in SSA records dated in October 2015, the Veteran at least partially attributed his inability to work to pain in his knees, and in March 2016 SSA records, trouble breathing; all of which the Veteran does not have service connection for. The VA examination from July 2014 and the SSA examination from December 2015 both indicate that the Veteran's disability does not prevent him from obtaining or maintaining employment. Both examiners thoroughly reviewed and considered the Veteran's medical history and lay statements. The July 2014 examination report reflects the Veteran had 5/5 muscle strength. The Veteran also reported during the examination that he stopped working in 2011 but worked intermittently since then mowing lawns and performing handyman work. The 2014 VA examiner concluded that the Veteran could still perform both active and sedentary work despite his cervical spine disability. The December 2015 examiner considered all of the Veteran's disabilities (not all of which are service-connected) and also concluded that although the Veteran would be expected to have some difficulty with heavy lifting, all other activities would appear tolerable. Although the question of unemployability is a legal determination, the Board finds the medical opinions in this case instructive and highly probative. As set forth above, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." In this case, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. Thus, referral for extraschedular TDIU consideration is not warranted at this time. ORDER Entitlement to TDIU due to a cervical spine disability is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs