Citation Nr: 1808990 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 07-13 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from May 1951 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Special Processing Unit located at the Regional Office (RO) in Cleveland, Ohio. As the Veteran now resides overseas, jurisdiction lies with the Pittsburgh Foreign Cases Office (Foreign Office) in Pittsburgh, Pennsylvania. The Board remanded this case in October 2011 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following any substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a 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 Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran 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). Under VA regulations, when a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655(b)(2017). In the January 2018 appellate brief, the Veteran's representative acknowledged that the Veteran did not attend the VA examinations scheduled to evaluate his service-connected disabilities; however, neither the Veteran nor his representative have given a reason as to why he failed to report for the VA examinations or that he had good cause for missing the examinations. Furthermore, the Veteran and his representative have not indicated that she missed the examinations due to a lack of notice. Therefore, the Board finds that good cause has not been demonstrated for the failure to report for the July 2017 VA examinations, and his claim for TDIU will be evaluated based on the evidence of record. Id. TDIU The Veteran reports that his service-connected disabilities, particularly his scapular, shoulder, and cervical neck muscle spasms, prevent him from securing and following any substantially gainful employment. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." M21-1 VA Adjudication Procedure Manual, Part IV.ii.2.F.1.c. (Updated September 24, 2015). It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16(a). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. From October 18, 2005, the beginning of the appeal period, the Veteran has a combined evaluation of 40 percent: neuropathy ulnar nerve residuals muscle wound right forearm as 30 percent disabling; and scapula, shoulder, and cervical neck muscle spasms as 20 percent disabling. At a 40 percent combined evaluation, the Veteran's service-connected disabilities do not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the schedular criteria have not been satisfied. Although the Veteran does not meet the schedular criteria for a TDIU, 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. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The rating board did not refer this case for extraschedular consideration. In this case, and for the reasons set forth below, the Board concludes that the evidence of record does not indicate that referral is warranted to the Director of the Compensation Service under the provisions of 38 C.F.R. § 4.16(b). The evidence shows that the Veteran obtained a General Equivalency Diploma (GED) and completed four years of college. See April 2007 and June 2009 VA Form 21-8940. In correspondences from October 2005 to January 2012, the Veteran reported that this right scapular, shoulder, and cervical neck muscle spasms were caused by him subconsciously raising his right forearm to avoid irritating a neuroma. When he lifted his right forearm, his right neck and shoulder muscles tensed, and after an hour or so, his muscle spasms were triggered. He would subconsciously lift his right forearm when he drove for long distances (i.e., 100 miles or more) or worked at a desk for an extended period of time. The Veteran stated that his right shoulder and neck muscle spasms were so severe, that they were disabling. If he lay down immediately after an episode began, then the spasms would end within an hour. Otherwise, they would last the entire day. He reported that the muscle spasms necessitated that he take longer and longer breaks. The Veteran stated that that the severity of his right shoulder and neck pain rendered him unemployable. However, he stated that he was in, otherwise, good health. The Veteran also reported that his neuropathy ulnar nerve residuals muscle wound right forearm caused partial paralysis of his right hand. This made it difficult for him to use a typewriter or keyboard. He could only use the "hunt and peck" system to type, so he could not type quickly. He also required half hour rest breaks throughout the day when typing. The Veteran claimed that his inability to type quickly made it difficult for him to find employment as an insurance adjuster. The Veteran reported that he retired in March 1995 as an insurance adjuster because he was having difficulties working quickly enough for his client companies. In November 2005, the Veteran was offered temporary insurance adjuster work in Florida after Hurricane Wilma. However, after he arrived in Florida for orientation, he had severe pain in his right shoulder and neck. The Veteran realized he would not be able to perform the work, so he decided to not take the job. He asserted that he would be unable to have meaningful employment, unless he is allowed to take half hour breaks throughout the work day. In a December 2005 VA examination, the Veteran reported that he was able to abduct his fingers, but had neuropathic pain in the form of random and painful electrical discharges. The examiner noted no deformities on the right forearm, normal range of motion for the elbow and wrist. He noted evident atrophy of the intrinsic muscles of the right hand. According to a February 2008 note by Mauricio Sittenfeld, M.D., the Veteran wanted to clarify that he did not have constant slight pain in the distribution of the ulnar nerve, but pain around the neck and shoulder caused by suspending his forearm above a desk. The Veteran reported that the muscle spasms occurred when he drove or when he positioned himself to avoid contact with the neuroma. The examiner found that (1) the Veteran's actions could contribute to his arm pain, (2) external stimuli (i.e., contact with object) could cause mild irritation at the right ulna neuroma site, (3) it was probable that the Veteran would subconsciously lift his forearm to avoid irritating the neuroma, (4) that subconsciously lifting his forearm for an hour or more would result in him flexing his right shoulder muscle, and (5) that flexing could trigger a spasm in shoulder and cervical muscles due to bad posturing. In an October 2008 VA examination, the examiner noted that the Veteran had a war wound on his right forearm, that he had had an operation for ulnar nerve reconstruction, and that he had a neuroma at the surgical wound. The examiner found that the neuroma making contact with objects or the Veteran working for several minutes at a desk caused severe electric-type pain. To avoid the pain, the Veteran lifted his right forearm by abducting his shoulder, which caused a "muscle contracture and pain at his right scapular, shoulder, and cervical neck musculature." According to a December 2009 note by German Solano, M.D., the Veteran had a neuroma at the surgical scar that caused severe electric-type pain when neuroma made contact with objects. German Solano, M.D. noted that the Veteran subconsciously lifted his right forearm when he worked at a desk or drove a car to avoid the neuroma from making contact with objects. The Veteran reported muscle spasms in his right shoulder that developed after an hour of work at a desk or while driving which made it necessary for him to stop what he was doing. Throughout the appeal period, the evidence of record does not reveal factors outside the norm resulting in unemployability. During the appeal period, the Veteran has not shown that his service-connected neuropathy ulnar nerve residuals muscle wound right forearm and scapula, shoulder, and cervical neck muscle spasms have significantly hindered his ability to maintain some form of gainful employment. While the objective evidence shows that the Veteran's service-connected disabilities would interfere with his ability to function in certain occupational environments (i.e., insurance adjustment), the evidence also demonstrated that with limitations he could still obtain and follow substantially gainful employment. Overall, the Board finds that the evidence during this appeal period does not support a finding that the Veteran's service-connected disabilities cause a significantly diminished level of functioning to the point where the Veteran is unable to work. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent the service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevent him from securing or following any substantially gainful employment, the Board finds that referral for extraschedular consideration is not appropriate, and a TDIU rating is not warranted. 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs