Citation Nr: 18156004 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-43 003 DATE: December 6, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to September 9, 2015, is denied. FINDING OF FACT The Veteran’s service-connected disabilities did prevent him from securing or following a substantially gainful occupation prior to September 9, 2015. CONCLUSION OF LAW The criteria for a TDIU prior to September 9, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1981 to November 1985. This claim was last before the Board in May 2018, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. In a July 2018 rating decision, a TDIU was granted from September 9, 2015. Therefore, the present decision will consider entitlement to a TDIU prior to September 9, 2015. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify was met in letters to the Veteran. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran has not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of this issue. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Entitlement to a TDIU prior to September 9, 2015 A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and 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 disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities, alone, must be found to be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and his previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran contends that he was unemployable prior to September 9, 2015, as a result of his service-connected disability. For the reasons described below, the Board concludes that a TDIU is not warranted. Prior to September 9, 2015, service connection was in effect for a lumbosacral strain, rated 10 percent. There were no other service-connected disabilities. The Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a). However, a TDIU evaluation can still be awarded if it is established by the evidence of record that service-connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation Services for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Veteran’s claim was reviewed by Compensation Services in July 2018. A private neurologist wrote in October 2010 that the Veteran was disabled. It was noted that the Veteran had increased joint pain involving the hips, shoulders, and hands, and that his diagnoses included degenerative disc disease of the lumbar spine. The Veteran had a private examination in January 2011 at which he was diagnosed with a lumbar spine disability with radiculopathy, cervical spinal stenosis with chronic pain, obesity, bipolar disorder, and multiple hernia repairs. The examiner opined that the Veteran was totally disabled (unable to work). It was not known if the condition was permanent. In November 2011 a physician wrote that the Veteran was unable to sit, stand, or walk for greater than five to ten minutes without changing position, and he needed to lie down at unpredictable intervals. The primary diagnoses were cervical and lumbar disc disease. It was noted that he had increased pain and intermittent paresthesia in the neck and weakness in the upper extremities. At a January 2012 VA examination, the Veteran reported lumbar pain with radiation. He said that he could not walk and sit for more than ten minutes without pain and could not lift heavy objects. The examiner noted that the Veteran is a former bookkeeper who became disabled in May 2010 due to multiple disabilities. A May 2012 disability update completed by a private physician states that the Veteran’s primary diagnoses were depression, bipolar disorder, moderate arthritis of the hips, cervical herniation with stenosis, thoracic disc herniation, and lumbar disc disease. The Veteran could not lift, climb, or bend, and had limitations related to sitting and standing. Subsequent physician updates indicate that there continued to be limitations with prolonged sitting and standing, and with lifting. At December 2013 private treatment it was noted that the Veteran had a slow gait due to cervical and lumbar spine disorders, and in October 2014 it was noted that he walked with a cane. A private treating physician wrote in December 2014 that the Veteran’s primary diagnoses included spinal stenosis, that he was unable to sit or sit for extended periods, and that he could not lift more than three and a half pounds. The same physician wrote an April 2015 note stating that the Veteran should be excused from jury duty due to diabetes with neuropathy, spinal stenosis, and lumbar radiculopathy, which prevented pronged sitting and standing and required frequent blood sugar checks. In a June 2015 disability status update, a private physician wrote that the primary diagnosis was diabetes mellitus, and the secondary diagnoses included lumbar spinal stenosis. The Veteran could not drive long distances, lift more than ten pounds, perform frequent bending, or stand for prolonged periods. The Veteran wrote in June 2018 that the pain in his low back became too great to perform the duties of his job. He could not lift file boxes, sit to perform everyday duties, and had difficulty rising from a sitting position. His education level was one year of college. The record shows that the Veteran was unable to maintain employment prior to September 9, 2015. However, the opinions discussed above considered the combined effect of nonservice-connected disabilities and the service-connected lumbosacral strain. The record does not show that the Veteran was unable to maintain employment solely due to the lumbosacral strain, which was the only service-connected disability, prior to September 9, 2015. His physical limitations were noted to also be due to his cervical spine disability and diabetes with neuropathy. Therefore, he was not entitled to a TDIU prior to September 9, 2015. See 38 C.F.R. § 4.16(b). The Veteran is competent to state what effects he believes his service-connected disabilities have on employment. See Layno, 6 Vet. App. at 470. Furthermore, the record shows that the lumbosacral strain causes some limitations in the Veteran’s ability to sit, stand, and lift. However, the record does not show that he was precluded from being able to perform all substantial gainful employment as a result of his service-connected disability prior to September 9, 2015. In summary, the Board finds that the most probative evidence of record demonstrates that the Veteran’s service-connected disability did not render him unable to secure or follow a substantially gainful occupation prior to September 9, 2015. Accordingly, the Board concludes that the criteria for a TDIU prior to that date have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel