Citation Nr: 1756043 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 10-18 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active service from February 1982 to July 1989. This matter comes before the Board of Veteran's Appeals (BVA or Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran was provided with a travel Board hearing in February 2012. A transcript of that hearing is of record. This case was previously before the Board in June 2013, December 2014, and September 2016 when it was remanded for further development. In the September 2016 remand, the TDIU rating under 38 C.F.R. § 4.16(b) was referred to the VA Director of the Compensation Service (Director) for extraschedular consideration. In May 2017, the Director denied a TDIU on an extraschedular basis. The matter has now been returned to the Board. New and relevant documentary evidence has not been added to the record since the May 2017 Supplemental Statement of the Case (SSOC). This appeal was processed using the Veterans Benefits Management System (VBMS) and virtual VA paperless claims processing systems. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability evaluation based on individual unemployability due to service-connected disabilities, on an extraschedular basis, have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.102, 3.340, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of a letter sent in October 2008, prior to the RO's initial unfavorable decision. The letter advised the Veteran of the evidence and information necessary to substantiate his claim. Furthermore, the Veteran was informed of his and VA's respective responsibilities in obtaining such evidence and information. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and relevant post-service treatment records and providing an examination when necessary. 38 U.S.C.A § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Here, the Veteran's service treatment records and post-service VA examination reports are a part of the claims file. The Board finds that the July 2013 VA medical examination is adequate for the purpose for which it was intended because it includes consideration of an accurate history and has an opinion that is definitive and supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was scheduled for a VA Social and Industrial Survey for purposes of providing additional information. The Veteran failed to report for a VA Social and Industrial Survey, and he has not otherwise presented good cause for failing to do so. Accordingly, the issue will be decided based on the evidence of record. Lastly, the Board finds that there has been substantial compliance with the prior Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rules and Regulations Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). When the Board conducts a TDIU analysis, it must take into account the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). It is the policy of the VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service connected disability shall be rated totally disabled and that Veterans who fail to meet the schedular criteria for a total disability rating shall be considered for such a rating on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board is precluded from awarding TDIU on an extraschedular basis in the first instance, but must ensure that the claim is referred to the Director of VA's Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Factual Background The Veteran claims that he is unable to maintain employment due to his service-connected disabilities. He contends that his sciatic nerve and back pain do not allow him to sit or stand for long periods of time, making it difficult for him to find a job. The Veteran is service connected for cardiomegaly at 30 percent, lumbosacral strain at 20 percent, chronic radiculopathy at 20 percent, and hypertension at 10 percent. The Veteran's combined disability rating was 50 percent from June 8, 1998 and is 60 percent from April 14, 2008. The Veteran's private medical treatment records from April 2009 indicate a notation that the Veteran is not able to work due to his subjective intensity of pain, and no doubt if he went back to his construction job, he would not be able to complete any type of physical labor at this point. In a February 2011 VA examination, the examiner reported that the Veteran's chronic lumbar strain is "very limiting in occupational and daily activities, he is not capable of more than light sedentary activity in short intervals, is not capable of sustained gainful employment, he cannot lift, nor can he stand or sit for greater than 20 minute intervals." Notably, although the Veteran is service connected for a lumbar spine disorder, he suffered a significant back injury while working in November 2004 for which he received Workers Compensation contrary to what he reported in his application for TDIU. Private medical treatment records from July 2011 indicate that, "[The Veteran] has not worked since the day of injury November 8, 2004 seven and a half years and we are not ready to release him to work and I am not sure he will be able to be released to work. He certainly cannot do anything where he needs to stay in the same position. He needs to be able to change position at will." In a July 2013 VA examination, the VA examiner reported, "[I]t is not appreciated that the [service-connected lumbar spine condition] is a factor in the Veteran's ability to obtain and maintain gainful employment to include sedentary work. I disagree with the examiner who completed the February 2011 exam. This examiner primarily worked in the primary care section of medicine and did not have a good understanding of the disability and TDIU process. The other factor is the Veteran had recently experienced the surgical implant of the spinal cord stimulator and may have presented differently. There are no limitations/restrictions found related to his cardiomegaly, lumbar strain, or hypertension that would cause this examiner to think that he cannot perform functions that would result in payment, i.e. employment. He is high school educated. He has not tried to seek employment and does not express an interest in anything when questioned regarding re-training for some type of work other than laborer as he indicates his back will no longer allow him to do that kind of work." Regarding the Veteran's hypertension disability, the examiner noted that his hypertension is stable and millions of people work all types of jobs with this condition. Analysis The record indicates that the Veteran last worked in November 2004 in construction. The Veteran's occupational history shows him working jobs in either construction or in a labor union. He has a high school education with no college or trade school experience. Regarding entitlement to TDIU on an extraschedular basis, the Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Director. 38 C.F.R. § 4.16(b) (2016). The Board notes that the Director's decision is, at this point, nonbinding on the Board. The Board reviews the entirety of the Director's decision de novo, and is thus authorized to assign an extraschedular rating when appropriate. See Wages v. McDonald, 27 Vet. App. 233 (2015) (providing that the Board is authorized to award an extraschedular TDIU after obtaining the Director's decision). In April 2017, a memorandum was provided to the Director addressing entitlement to a TDIU on an extraschedular basis. In May 2017, the Director evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that entitlement to TDIU on an extraschedular rating per the provisions of 38 C.F.R. § 4.16(b) is denied. The Director explained that although the Veteran is unemployed, the objective medical evidence of record fails to establish that he is precluded from employment due to his service connected heart condition, hypertension, or lumbar spine condition with radiculopathy. She also noted that the medical evidence of record shows that the Veteran experiences limitation of motion of the lumbar spine with associated pain and radiculopathy, which would impact his prior employment performing temporary labor. However, the record does not demonstrate that the Veteran is precluded from performing sedentary employment. The Board similarly finds that the Veteran's record does not persuasively support a finding for TDIU on an extraschedular basis. The Veteran did not report for a VA Social and Industrial Survey. Thus, evidence expected from this survey could not be considered. The July 2013 VA examiner reviewed the Veteran's records and lay testimony and concluded that he was not limited or restricted from obtaining and maintaining employment due to his service connected disabilities. The July 2013 VA examiner also disagreed with the previous February 2011 VA examiner's opinion and provided an adequate rationale for her disagreement. Additionally, the Veteran's record contains significant evidence that an intercurrent accident involving his back was sustained in November 2004 while working at a construction company, at which point he stopped working and filed a workers' compensation claim. Thus, the evidence of record does not persuasively show that the Veteran is unable to work due to service connected disabilities. As such, the preponderance of the evidence is against the claim for entitlement to TDIU on an extraschedular basis, and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU on an extraschedular basis is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs