Citation Nr: 1805658 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-30 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) in the Minnesota Army National Guard from June 2008 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a September 2016 decision, the Board addressed claims for increased ratings for service-connected disabilities, and pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), found that the issue of entitlement to TDIU had been raised by the record and was on appeal. The Board remanded the issue of entitlement to TDIU for further development. In June 2013, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. A transcript of that hearing is of record. In June 2016, the Board notified the Veteran of the fact that the Veterans Law Judge that conducted that hearing was no longer employed by the Board and that she had the opportunity to testify at another hearing. See 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). The Veteran was given 30 days to respond to the letter; however, to date, no response has been received. Thus, there is no outstanding hearing request. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not meet the schedular criteria for TDIU. 2. The Veteran's service-connected disabilities do not render her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor her representative has 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). Law and Analysis All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 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. 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 inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also 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 keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is service-connected for a compression fracture at T7, disc protrusions at L3-L4 and L5-S2, and right L1/L2 nerve root schwannoma, rated as 20 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; and depressive disorder with anxiety features, rated as 30 percent disabling. The combined evaluation is 50 percent. The Veteran does not have a service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more. Therefore, she does not meet the percentage requirements for TDIU under 38 C.F.R. § 4.16 (a). It is recognized that the Board is precluded from assigning an extraschedular rating in the first instance; however, the Board must specifically adjudicate the issue of whether referral for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is warranted. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. Thus, referral for TDIU on an extraschedular basis is not warranted. Specifically, the Veteran has contended that her service-connected back disability affects her employment. During an April 2011 VA examination for her back disorder, the Veteran reported that she had worked as a patient care assistant for the developmentally disabled in a group home since August 2010 and also attended community college part-time. She reported that she had flare-ups of pain once a week, which affected her work because she was unable to lift her patients. She did not take any medication for the flare-ups, but instead, would wait for the pain to cease. The examiner found that she was able to pursue gainful employment. In a September 2011 statement, the Veteran reported that her back pain significantly affected her employment because she could not lift her patients as she was required to do. She also reported that she could not work in her trained profession as an Emergency Medical Technician (EMT) because that job also required her to lift patients. In an August 2012 VA examination, the Veteran again reported that she had difficulty in her employment due to her inability to lift patients and equipment as a result of her back disorder. Although she did not have any official work restrictions, she did attempt to be cautious, and her supervisors and co-workers would assist her in completing her work. The examiner found that the Veteran's back disorder did affect her ability to work. Specifically, the examiner noted that, although there were no written work restrictions, the Veteran exhibited significantly lower range of motion on the examination which appeared to be due to significant pain and guarding noted at the mid-thoracic level. During the June 2013 Board hearing, the Veteran reported that her back disorder affected her employment because she had to switch locations when she was unable to lift certain patients. She indicated that the responsibility of relocating was placed on her. During a March 2014 VA examination, the Veteran reported she worked full-time in overnight shifts at a group home where she provided assistance to the developmentally disabled. She also reported working part-time as a cake decorator, but had difficulty with that job because prolonged standing in one position increased her back pain. She reported that she was unable to work as an EMT because her back pain prevented her from lifting or carrying an average adult with an assistive device. The examiner found that her back disorder impacted her ability to work because standing in one position for extended periods of time caused her back pain. In September 2016, the Board remanded the issue of entitlement to TDIU for further development. The Agency of Original Jurisdiction (AOJ) was directed to provide the Veteran with a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. After completion of the application, the Veteran was then supposed to be scheduled for an appropriate VA examination to determine the functional impairment caused by her service-connected disabilities. In October 2016, pursuant to the remand, the AOJ provided the Veteran with the application at her last known mailing address; however, she did not complete the application. No other evidence pertaining to the claim for TDIU was provided. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16 (b). The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. On review of the record, the Board finds that the disability evaluation assigned to the Veteran's service-connected back disability under the VA Schedule for Rating Disabilities accurately reflects the Veteran's overall impairment to her earning capacity due to her service-connected disability. The record also reflects that the Veteran has been continuously employed since her injury in service. During each of the VA examinations, the Veteran reported that she was employed as patient care assistant, providing care for developmentally disabled adults. While the record does reflect that her back disorder has impacted her job, she has still been gainfully employed for the entire period of appeal. Furthermore, while the Board recognizes that the Veteran has had difficulties with fulfilling certain aspects of her job due to her service-connected back disorder, she did not complete the application form for her TDIU claim which would have provided information with which to continue development of her claim. The Veteran has the burden of establishing her entitlement to TDIU by providing VA with her earned income and employment information for the entire appeal period. The burden on the Veteran in providing VA with her income information is not an onerous one, but a necessary one to be able to determine her TDIU eligibility for all times during the appeal period. Based on the foregoing, the Board finds that the requirements for referral of an extraschedular TDIU evaluation have not been met. Thus, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to TDIU is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs