Citation Nr: 1759922 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-25 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from September 1983 to July 1987. He is the recipient of the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2014, the Board awarded a 40 percent rating for lumbar spine degenerative disc disease (DDD) with bilateral radiculopathy, effective June 16, 2009. The Board found that the record reasonably raised a claim for TDIU as part of the appellant's claim for an increased rating for his lumbar spine DDD. A claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of entitlement to TDIU in order to afford the appellant an examination for such. Supplemental Statements of the Case were issued in March 2016, May 2016, and May 2017. In correspondence received in December 2017, the appellant's representative informed the Board that the appellant did not desire a hearing before the Board with respect to the instant claim. FINDING OF FACT The appellant's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or 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. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. TDIU 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; 38 C.F.R. §§ 4.1, 4.10. 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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. 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; 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. III. Analysis A. Schedular Thresholds The appellant's combined evaluation for compensation was 30 percent beginning May 29, 2008, with a 20 percent rating for lumbar spine DDD and a 10 percent rating for left upper back lipoma removal. Beginning June 16, 2009, his combined evaluation was 50 percent, when his lumbar spine DDD rating was increased to 40 percent. Beginning November 18, 2015, his combined evaluation was 60 percent, when a 20 percent rating for right lower extremity radiculopathy with peripheral neuropathy and a 10 percent rating for left lower extremity radiculopathy with peripheral neuropathy were awarded. Beginning June 3, 2016, the appellant's combined evaluation was 70 percent, when the rating for left lower extremity radiculopathy with peripheral neuropathy was increased to 20 percent. Prior to June 3, 2016, the appellant does not meet the schedular threshold for TDIU because service connection is in effect for multiple disabilities and his combined rating is not at least 70 percent. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Thus, for the period prior to June 3, 2016, the Board will consider whether the appellant is unemployable by reason of service-connected disabilities, such that submission of the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b) would be warranted. B. Evidence In May 2008, the appellant reported that he last worked in July 2007. In June 2008, he reported working as a contractor and hurting himself as a result. In September 2008, he reported that he last worked in 2005 and had not since due to health problems; however, he would be taking full-time educational courses beginning January 2009. In October 2008, the appellant reported that he does not work but was taking courses full-time in the computer science field. In April 2009, he reported that he had been unemployed for one to two years because he was a full-time student. In June 2009, he reported that he had been unemployed for one to two years because of his lumbar spine DDD. In August 2009, he reported that he had been unemployed for more than 20 years due to neck and lower back pain. In May 2013, he reported that his job was terminated because he injured himself while moving boxes of wheelchairs. In June 2013, he reported that he was unemployed. In January 2014, he reported that he was working in IT and was considering restarting vocational rehabilitation in the summer. In February 2014, he reported that he retired from carpentry in 2005 and that he had been working 30 hours per week for the past 12 months as a maintenance worker, with a 10 pound lifting restriction. In July 2016, he reported that he was struggling with his third-shift IT job. In August 2016, he reported that he had no employment in the past five years, other than small summer jobs he picked up, and that he earned an associate's degree in art history in 2013. In December 2016, he reported that he was dismissed from his job in the vocational rehabilitation program in May 2013 because he was injured performing physical labor, although his job contract had indicated he would be performing secretarial work. He stated that he has been unable to hold gainful employment since his dismissal. Multiple clinical notes and vocational rehabilitation reports state that the appellant was unable to prepare for, obtain, or maintain employment in a suitable occupation due to service- and nonservice-connected disabilities, age, and lack of education and training for sedentary employment. A November 2014 Independent Living Assessment concludes that the appellant is "not feasible for employment" and would benefit from independent living services due to his lower back disability. It was noted that he was limited from prolonged walking, standing, and sitting, and experienced chronic back pain. His anxiety/mood disorder was noted to limit his contact with others. The appellant's representative noted that the appellant has tried to secure gainful employment since he stopped working due to his disabilities, but when he obtained employment, he was unable to remain in the workforce. The representative argued that gainful employment based upon the appellant's education would be inevitably unavailable. During an April 2009 VA examination of the lumbar spine, the examiner noted that there were no effects on feeding, bathing, dressing, toileting, or grooming, mild effects on shopping and travelling, moderate effects on chores and recreation, and severe effects on exercise and sports. Because the appellant was unemployed, no effect on the usual occupation was noted. During a November 2009 VA examination for scars, the examiners opined that the appellant's left upper back lipoma had no effect on usual daily activities and noted that the appellant was not employed. The appellant was afforded a VA examination in February 2014. The claims file was reviewed. The VA examiner opined that, disregarding the appellant's age and nonservice-connected disabilities, it was at least as likely as not that the appellant could not secure and maintain substantially gainful employment in physical occupations due to low back pain, right sciatic nerve pain, and numbness and tingling of the leg. The examiner noted that these cause reduced range of motion of the back, prevent lifting and carrying greater than 10 pounds repetitively, prevent pushing and pulling greater than 25 pounds repetitively, prevent repetitive bending from the waist, and prevent repetitive stooping and twisting from the waist. However, the examiner also opined that, disregarding the appellant's age and nonservice-connected disabilities, it was at least as likely as not that the appellant could secure and maintain substantially gainful employment in sedentary occupations. The appellant was afforded VA examinations for his left upper back lipoma removal scar in April 2016, his peripheral nerves in June 2016, and his lumbar spine in April 2016, July 2016, and March 2017. The claims file was reviewed by each examiner. The examiners opined that the appellant's scar did not impact his ability to work, and that his lumbar spine disability and radiculopathy impacted his ability to work because they cause pain and difficulty with prolonged standing, walking, carrying, and lifting. A Form 21-8940 was received in December 2017. The appellant stated that he was unable to secure or follow a substantially gainful occupation due to all of his service-connected disabilities. He stated that he had been under a doctor's care and/or hospitalized between November 2009 and November 2017. He stated that his disability affected full-time employment in July 2008 and that he last worked full-time and became too disabled to work in September 2009. He worked full-time as a sign maker from 1990 to 2006 and missed approximately one month due to illness. He worked as a framing carpenter full-time from 2006 to 2009 and missed approximately three months due to illness. He stated that he left his last job due to disability and had not tried to obtain employment since he became too disabled to work. He had two years of college education and had no additional education or training, either before or after he became too disabled to work. C. Entitlement to TDIU Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the appellant being unable to secure and follow substantially gainful employment due to service-connected disabilities during any portion of the period on appeal. Thus, extraschedular referral for the period prior to June 3, 2016, is not warranted. Initially, the Board notes that vocational rehabilitation-related opinions that the appellant is unemployable are based on his age, education level, and nonservice-connected disabilities, in addition to his service-connected disabilities. Thus, although the Board has carefully considered this evidence, it finds that it is not determinative of the question at issue in this case because the applicable legal criteria require that individual unemployability be determined without regard to any nonservice-connected disabilities or advancing age. The November 2014 Independent Living Assessment concludes that the appellant is "not feasible for employment" due to his lower back disability, and notes that the appellant is precluded from prolonged walking, standing, and sitting, and experiences chronic back pain. The opinion also took note of his nonservice-connected anxiety/mood disorder. However, unlike the vocational rehabilitation counselors, no VA examiner opined that the appellant's service-connected disabilities, in and of themselves, precluded him from prolonged sitting. Rather, the VA examiners unanimously opined that the appellant's service-connected disabilities only precluded physical work. The VA examiners did not find that the appellant's service-connected disabilities preclude him from performing sedentary work. Indeed, the February 2014 VA examiner specifically opined that, based upon examination of the appellant and review of the claims file, and disregarding the appellant's age and nonservice-connected disabilities, it was at least as likely as not that the appellant could secure and maintain substantially gainful employment in sedentary occupations. That examiner also discussed specific physical limitations due to the appellant's service-connected disabilities. The Board finds that the multiple VA medical opinions which conclude that the appellant is unable to secure and follow substantially gainful employment in physical occupations only due to his service-connected disabilities, and that the appellant is not precluded from sedentary employment, are entitled to greater probative weight than the November 2014 vocational rehabilitation report because they are based on physical examinations of the appellant's capabilities with respect to his service-connected disabilities and are based on reviews of the evidence of record. The Board also finds that these opinions are more consistent with the clinical evidence of record which appears to show that the appellant engaged in schooling and less physical employment activities. As set forth above, the appellant's activities as reported in clinical settings appear to corroborate the examiners' conclusions that the appellant was capable of performing sedentary work, and indeed did perform work for portions of the period on appeal. The appellant's representative argues that gainful employment based upon the appellant's education would be inevitably unavailable. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran is actually employed or can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Board concludes that the most probative evidence establishes that the appellant is not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Although his service-connected disabilities quite clearly impair his ability to engage in manual labor, the record reflects that he is capable of performing sedentary work consistent with his education and work history. While the Board recognizes the limitations the appellant faces due to his service-connected disabilities, these limitations were considered in the disability ratings he receives for those disabilities. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. However, despite these limitations, the Board finds that the most probative evidence shows that the appellant is not unable to secure or maintain substantially gainful employment due solely to his service-connected disabilities. Rather, the Board finds that the appellant was capable of performing the physical and mental acts required for employment. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 28 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a total disability evaluation based on individual unemployability is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs