Citation Nr: 1752835 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-17 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to TDIU is denied. FINDING OF FACT The Veteran's service-connected disabilities were not of such severity as to preclude substantially gainful employment, and warrant referral for extra-schedular consideration of TDIU. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This case is unusual procedurally. A May 2013 Board decision found that the evidence of record raised the issue of entitlement to TDIU, as the claim was considered part and parcel of the underlying claims for increased ratings for the Veteran's service-connected disabilities. See Rice v. Shinseki, 22 Vet.App. 447 (2009). The Board remanded the issue of TDIU to the RO for further development. The RO denied the TDIU claim in an August 2013 rating decision. At the time of the August 2013 decision, the Veteran was service-connected for multilevel degenerative disc disease of the lumbar spine, at 40 percent disabling; and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine, at 10 percent disabling. An October 2014 rating decision granted service connection for "neurological bladder," at 60 percent disabling; and erectile dysfunction, at zero percent effective (noncompensable) with special monthly compensation based on loss of use of creative organ (SMC). A September 2016 decision by the Board found that the October 2014 grant of service connection for a "neurological" bladder disorder and erectile dysfunction, was based in part, on inauthentic treatment records submitted by the Veteran by an individual represented by the Veteran to be P.K. Finelli, DO, of the Orthopedic Institute of Central Jersey. The Board found that various inauthentic medical documents reflected that the author made numerous grammatical mistakes, punctuation errors, and spelling mistakes - the very same mistakes that characterized the Veteran's writing. (The Board also noted that the non-medical term "neurological bladder," as specifically used by purported P.K. Finelli, DO, and as implemented by the October 2014 rating decision, should be revised to reflect the medical term "neurogenic bladder," as noted in a June 2015 VA examination report.) The decision also denied increased ratings for multilevel degenerative disc disease of the lumbar spine and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine. The Board found all purported medical documents and letters from P.K. Finelli, DO, to be inauthentic documents. Because those documents were found to be inherently false or untrue, their credibility was not presumed and they were, therefore, of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value" since it relied upon veteran's "account of his medical history and service background, recitations which had already been rejected" by RO, and hence holding opinion not to be "material" evidence). The Board further found that the weight of the relevant medical and lay evidence, consisting mainly of VA treatment records and VA examinations, demonstrated that the criteria for increased disability ratings for multilevel degenerative disc disease of the lumbar spine and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine have not been met. Finally, in light of the multiple inconsistencies, irregularities, and inauthenticity contained in the record, the September 2016 Board decision referred the questions of severance of service connection for a neurogenic bladder disorder and erectile dysfunction to the RO for initial adjudication. An August 2017 rating decision severed service connection for "neurological bladder" and erectile dysfunction with SMC, all due to fraud (this action was preceded by an April 2017 rating decision, which proposed the severance), effective January 29, 2014. The severance was done because it was determined that the medical documentation on which the grants were based was determined to be fraudulent. The same August 2017 decision reduced the ratings for degenerative disc disease of the lumbar spine and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine, both to noncompensable, effective November 1, 2017. This brings the Board to the issue currently before it, entitlement to TDIU. Under 38 C.F.R. § 4.16, if there is only one disability for which a Veteran is service-connected, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall 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. See 38 C.F.R. § 4.16 (a) (2017). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the Veteran's background, including his or her employment and educational history. See 38 C.F.R. § 4.16 (b) (2017). For the period on appeal (December 2014-on), the Veteran was service-connected for multilevel degenerative disc disease of the lumbar spine, at 40 percent disabling, and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine, at 10 percent disabling. The combined service-connected rating for compensation for the period on appeal was 50 percent. Therefore, the Veteran did not meet the criteria for consideration of TDIU on a schedular basis. Here, the Board notes that the combined service-connected rating for compensation for the period on appeal reflects the severance of service connection for "neurological bladder" and erectile dysfunction with SMC, which were both severed due to fraud in an August 2017 rating decision, which proposed the severance), effective January 29, 2014. For those Veterans who fail to meet the percentage standards, TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16 (b) (2017). For a Veteran to ultimately prevail on a claim for TDIU on an extra-schedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In making the determination, the Board will not be relying on any purported medical documents and letters from P.K. Finelli, DO, as the September 2016 Board decision found them all to be inauthentic documents. Because those documents were found to be inherently false or untrue, their credibility was not presumed and they were, therefore, of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value" since it relied upon veteran's "account of his medical history and service background, recitations which had already been rejected" by RO, and hence holding opinion not to be "material" evidence). Turning to the probative medical evidence, a May 2014 VA examiner opined that the Veteran's back condition did not impact his ability to work, that there was symptom magnification, that the Veteran did not experienced lumbar radiculopathy, that there were no objective findings, that the Veteran had positive Waddell signs (signs that may indicate non-organic or psychological component to chronic back pain), and that the Veteran was "trying to deceive" the examiner. The Veteran underwent another VA examination in April 2015. The examiner opined that the Veteran's back condition impacted his ability to work, as the Veteran's spine arthritis limited heavy lifting. The examiner opined that the Veteran did not experience radiculopathy. The Veteran underwent another VA examination in June 2015. The Veteran reported to the examiner that his back condition did not interfere with his job, but, contradictorily, reported that he could not work due to his back and that he has not worked in five years. The examiner opined that the Veteran's back disability did not have an impact on his ability to work, as the new pathology was not due to the Veteran's in-service injury (the examiner was presumably referring to the Veteran falling off a 50 foot platform in 2005, after service, and/or a work-related January 2008 motor vehicle accident, see March 2008 VA treatment records). Social Security Administration (SSA) records show that the Veteran does not receive any disability for his service-connected disorders, and was deemed not to be precluded from working due to his back pain. As such, the evidence of record does not establish that the Veteran is unemployable. While he may experience back pain, and one of the examiners opined that he should not perform heavy lifting at work, he has not been shown to be precluded from performing other types of jobs that are consistent with his skills and education. The Veteran has some college (August 2014 VA treatment records, in Legacy) and worked at some point as a security guard (August 2007 VA treatment records, in Legacy). He has not shown that he cannot maintain gainful employment due to his service-connected conditions, and the objective evidence of record does not show that such rendered him unemployable as to warrant extraschedular consideration. In sum, the Veteran is not eligible for TDIU on a schedular basis, and there is no showing that the Veterans was unable to secure and follow a substantially gainful occupation by reason of his service-connected multilevel degenerative disc disease of the lumbar spine, at 40 percent disabling, and left lumbar radiculopathy associated with multilevel degenerative disc disease of lumbar spine. For the reasons set out above, claim for a grant of TDIU must be denied. See 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C. § 5107 (b) (2012), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet.App. 366, 369-7 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A.Lech, Counsel Copy mailed to: National Association of County Veterans Service Officers Department of Veterans Affairs