Citation Nr: 1805917 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-17 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In September 2012, the Veteran testified at a videoconference Board hearing before the undersigned at the Boise RO. A transcript of that hearing is of record. In an August 2014 decision, the Board denied entitlement to an evaluation in excess of 20 percent for a low back disability and ordered a remand for additional development for the issue of entitlement to a TDIU. Such development has been completed and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. The combined rating for the Veteran's service-connected disabilities is less than 60 percent. 2. The Veteran's service-connected disabilities are not shown to preclude him from securing and following substantially gainful employment consistent with his educational and work background. CONCLUSIONS OF LAW 1. The criteria for the assignment of a TDIU on a schedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). 2. The criteria for referral to the Director of Compensation Service for extraschedular consideration of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5013(a)-compliant notice in September 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examinations of the Veteran. Neither the Veteran nor his representation has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In August 2014, the Board remanded the claim for additional development. Pursuant to the Board's remand, the AOJ informed the Veteran of what is needed to substantiate a claim for entitlement to a TDIU, scheduled the Veteran for a VA examination to determine the effects of all service-connected disabilities on the Veteran's employability, and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record. II. Entitlement to a TDIU A. Legal Principles 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 as totally disabled. 38 C.F.R. § 4.16 (2017). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2017). In exceptional circumstances, where the veteran does not meet these percentage requirements, a total rating nonetheless may be assigned on an extraschedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b) (2017). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to any non-service-connected condition or advancing age. 38 C.F.R. §§ 3.341, 4.16, 4.19. B. Factual Background and Analysis At the time the Veteran filed his claim for entitlement to a TDIU in October 2010, his service-connected disabilities included a low back disability, rated 20 percent; right leg neuropathy, rated 10 percent; and left leg neuropathy, rated 10 percent. The Veteran's combined service-connected disability rating at this time was 40 percent. Therefore, the Veteran does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating on a schedular basis. Where the percentage requirements are not met, entitlement to the benefits 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. 38 C.F.R. § 4.16(b). Factors to be considered in determining whether a veteran is unemployable are his or her level of education, employment history, and vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Turning to the evidence of record, the Veteran underwent a VA examination for his back in March 1998. He reported that following separation from service, he worked primarily as a truck driver and manual laborer. He asserted the need to quit several jobs due to left leg pain. At the time of the VA examination, the Veteran was employed as an airport shuttle driver, noting that he was able to lift between 50 and 70 pounds. The examiner noted the Veteran seemed to be able to accomplish this job without significant difficulty. During a December 2003 VA examination for his back, the Veteran stated that following November 2002 back surgery, he experienced sensory loss and pain in both of his legs. He indicated that excess activity increased the pain in his back, therefore, he limited what he lifted. He stated that once a week, he needed to lie down for three to four hours to allow for pain in his back to subside after being on his feet for too long. During a July 2005 VA examination for his back, the Veteran reported pain at a level 7 out of 10, pain radiating in the back of his legs and bottom of his feet, and stiffness and weakness in his back. He indicated that due to his back disability, daily activities such as getting dressed and bathing were more difficult. He reported experiencing pain when operating a clutch while driving and that he was restricted in lifting over 25 pounds. During a July 2006 VA examination for his back, the Veteran reported pain at a level of 5 to 6 out of 10, with pain and weakness in his back that radiated down both of his legs. He reported back flare-ups at a level of 8 to 9 out of 10, occurring three to four times a week, lasting 60 to 90 minutes. He indicated that he continued to work out at the gym and that when driving, he needed to stop after an hour to get up and move around. In 2009, the Veteran's vocational rehabilitation program was discontinued as the Veteran completed his Bachelor's Degree. The Veteran indicated that he had no interest in pursuing employment in a field related to his degree at that time, as he preferred to stay with his job at Allied Waste, working on a curbside recycling sorting truck. During a September 2010 VA examination for his back, the Veteran indicated that he was still employed with Allied Waste. He stated that he no longer picked up recycling cans by hand, as his company switched to mechanical pick-up. He was now in a more sedentary role, riding in the recycling sorting truck, which was shaky and caused the Veteran's back pain to worsen. The Veteran indicated he experienced back pain when less activity was involved, and that he still continued to go to the gym. He reported losing 17 weeks of work during the prior year due to his back disability. The examiner noted the Veteran experienced decreased mobility, problems with lifting and carrying items, decreased strength in his lower extremities, difficulty bending, and difficulty walking for long periods of time. A September 2010 VA Report of Contact memorandum indicated the Veteran returned to work at Allied Waste that month and was informed that Allied could not accommodate the physical restrictions posed by the VA Medical Center with regard to his back disability. The Veteran filed an application for TDIU in October 2010. He indicated that he ceased working full-time in May 2010. He listed his employment as a driver with Allied Waste from March 2007 to May 2010 and noted that from September 2002 to December 2006, he was a student at Boise State University. He asserted that he had difficulty standing for prolonged periods of time, walking, bending, and lifting. In an October 2010 Attending Physician Statement of Continued Disability by Hartford Life Insurance Company, the Veteran was diagnosed with lumbar back pain and disc disease and lumbar radiculopathy. The physician noted that the Veteran could return to work under certain restrictions, to include lifting no more than 20 pounds, limited stooping and bending, and no sitting or standing in a single position for more than 30 minutes. In a November 2010 addendum to the September 2010 VA examination, the examiner opined that the Veteran was capable of securing gainful employment. While the examiner noted that the Veteran should not lift anything over 20 pounds and that he should avoid working jobs where he will be forced to sit for prolonged periods of time, he is not precluded from sedentary employment, as he could alternate between a standing desk and a sitting desk. The examiner indicated that the Veteran could also perform tasks that involve walking and that many clerical positions are possible, as many call centers have headsets that allow for standing. The examiner stated that the Veteran's back symptoms were likely to be short-term and manageable with anti-inflammatories and acknowledged that the Veteran currently attends the gym to work on core strengthening. The examiner concluded that the Veteran's back disability was not an incurable problem that would completely render the Veteran unable to work in the long-term. In his December 2010 notice of disagreement, the Veteran indicated that he was currently unemployed due to his back disability. He stated that his position with Allied Waste was terminated due to restrictions placed on his physical activities, and that he continued to experience incapacitating muscle spasms. In a July 2011 statement, the Veteran indicated he wished to withdraw his claim for a TDIU, stating that while he is unable to perform manual labor jobs requiring prolonged standing, bending or lifting, he is able to perform sedentary employment. During a September 2011 VA examination for his back, the Veteran reported that he is unemployable due to his back and leg disabilities. The examiner did not opine as to the functional impact of the Veteran's disabilities on his ability to work. During a May 2012 VA examination, the Veteran indicated that from 2006 to 2010, his back was stable and there were no serious problems. He reported that, at the time of examination, while he experienced problems with sitting, standing, and walking, he was currently employed as a taxicab driver. Regarding functional impact, the examiner noted the Veteran's back disability impacts his ability to work, noting the Veteran indicated that he lost his truck driving job due to his back disability. Additionally, the examiner noted that the Veteran's leg disabilities, to include peripheral neuropathy, did not impact his ability to work. During his September 2012 videoconference Board hearing, the Veteran testified that his back disability rendered him unemployable. He indicated that while working for Allied Waste, his job was fairly sedentary in nature, where he sat in a truck for most of the day operating the vehicle to dump trash and recycling cans. He stated that prolonged sitting in the truck caused his back to snap and led to paralysis down his left leg. At the time of the hearing, the Veteran indicated that he drove a shuttle which allowed him to change positions every 15 mins. He estimated his salary was approximately $20,000 a year, roughly half of what he earned while working at Allied Waste. Pursuant to the Board's August 2014 remand, the Veteran underwent VA examinations for his back and leg disabilities in September 2016. During his VA examination for peripheral nerves, the examiner found no evidence of a current peripheral nerve disability, to include peripheral neuropathy, noting that the Veteran more likely has bilateral radiculopathies. As the examiner found no evidence of a current peripheral nerve disability, no opinion was rendered with regard to the Veteran's employability due to his service-connected right and left leg peripheral neuropathy disabilities. With regard to the Veteran's back disability, the examiner diagnosed the Veteran with Intervertebral disc syndrome and degenerative arthritis of the spine. The Veteran reported that since 2011, he has driven a taxicab and does not experience any further paralysis. He indicated that he ceased receiving medical treatment in 2012 and that he practices home exercise, lifting up to 50 pounds in weight. The Veteran indicated that he experiences flare-ups in his back, which affect sitting, bending, standing, and walking. The examiner found that the Veteran's back disability impacts his ability to work, as it causes a decreased range of motion, precludes him from lifting heavy items, and limits his ability to stand to 5 to 10 minutes at a time. The examiner opined that while the Veteran's back disability precludes him from performing physically demanding labor that involves heavy lifting, pushing and pulling, repetitive bending, and prolonged standing, sedentary employment was not excluded, noting that the Veteran currently runs his own taxicab business. In June 2017, as the Veteran indicated during his September 2016 VA examination that he is currently employed as a taxicab driver, he was asked to provide additional information regarding his employment since 2010. To date, the Veteran did not furnish this information to VA. Upon review of the evidence of record, the Board finds that a remand for referral of the Veteran's claim for consideration of a TDIU on an extraschedular basis is not warranted. The Veteran's VA examination reports, as well as his lay statements and hearing testimony show that the Veteran's service-connected disabilities do not render the him unemployable. The Veteran holds a Bachelor's degree in marketing from Boise State University, however, his work background has primarily centered around occupations that involve driving motor vehicles, specifically trucks, airport shuttles, and taxicabs. The Veteran reported employment as a taxicab driver during his May 2012 and September 2016 VA examinations, indicating his choice to begin a taxicab business in 2011, despite having a background in marketing from Boise State University. While the Veteran asserts that sitting, bending, standing, and walking affect his back disability, despite these physical limitations, he indicated during his September 2016 VA examination that he continues to exercise at home and weightlifts up to 50 pounds. The examiner found that while the Veteran's back disability impacts his ability to perform physically demanding labor, there is no current diagnosis of right leg or left leg neuropathy, for which he is currently service-connected. Although the September 2016 VA examiner opined that the Veteran's back disability precludes him from performing physically demanding labor that involves heavy lifting, pushing and pulling, repetitive bending, and prolonged standing, the examiner did not exclude sedentary employment. The Board finds that despite the Veteran's contentions that his back, right leg, and left leg disabilities render him unemployable, he is capable of performing sedentary employment, evidenced by the fact that he continues to drive a taxicab which requires the Veteran to sit for extended periods of time while also allowing him opportunities to take breaks and stand up to stretch his back and legs. As noted, the Veteran has been afforded the opportunity to provide updated employment history from 2010 to the present in a formal TDIU application, and was specifically provided such an application in June 2017; however, he failed to submit this information and has not otherwise provided any information pertaining to his employment history since 2010 or his current employment status. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). In conclusion, the Board finds that the weight of the evidence of record shows that the Veteran's service-connected disabilities do not prevent him from securing and following substantially gainful employment consistent with his educational and work background. Therefore, referral to the Director of Compensation and Pension Service for extraschedular consideration is not required. The Board considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Accordingly, in this case, the preponderance of the evidence is against the Veteran's claim for a TDIU and it is denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a TDIU, to include on an extraschedular basis, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs