Citation Nr: 1736691	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-45 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU), to include extraschedular consideration for TDIU.


REPRESENTATION


Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 



INTRODUCTION

The Veteran served on active duty from October 1964 to October 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the RO that granted service connection for degenerative disc disease of L5-S1 evaluated as 10 percent disabling effective June 20, 2008.  The Veteran timely appealed for a higher initial rating.

In a March 2013 decision, the Board denied a higher initial rating for degenerative disc disease of L5-S1 prior to July 3, 2010; and granted a 20 percent, but no higher, rating for degenerative disc disease of L5-S1 beginning July 3, 2010.

The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for higher compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 

Also in March 2013, in light of the holding in Rice, the Board remanded the matter of entitlement to a TDIU for additional development.  The matter was again remanded by the Board in April 2016 for extraschedular consideration, pursuant to 38 C.F.R. § 4.16(b).  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Consistent with the Veteran's assertions and the record, the Board has recharacterized the appeal as encompassing the issue on the title page.


FINDINGS OF FACT

1.  Service connection is in effect for degenerative disc disease of L5-S1, currently rated as 20 percent disabling; and for radiculopathy of the right lower extremity, rated as 10 percent disabling.  The combined disability rating, effective July 3, 2010, is 30 percent. 

2.  The Veteran has not worked full-time since December 2008; he reportedly has completed four years of high school, and has work experience as a truck driver and as a custodian. 

3.  The Veteran's service-connected disabilities are not shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment.   


CONCLUSION OF LAW

The criteria for an extraschedular TDIU are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20114); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  

VA's duty to notify was satisfied by August 2009 and April 2013 letters.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Board concludes that VA's duty to assist has been satisfied.  All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The RO or VA's Appeals Management Office (AMO) has obtained the Veteran's service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and appear adequate.  The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms.  The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim.  38 U.S.C.A. § 5103A(a)(2).

II.  Analysis

Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is 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.  For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability.  38 C.F.R. §§ 3.340, 3.34l, 4.16(a).  In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).

However, where the percentage requirements set forth above are not met, entitlement to the benefit 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, and consideration is given to the Veteran's background including his employment and educational history.  Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section.  38 C.F.R. § 4.16(b).  

Service connection is currently in effect for degenerative disc disease of L5-S1 currently rated as 20 percent disabling; and for radiculopathy of the right lower extremity, rated as 10 percent disabling.  The combined disability rating, effective July 3, 2010, is 30 percent; and the schedular requirements for a TDIU are not met. The question is, thus, whether the Veteran is entitled to an extraschedular TDIU.

The report of an August 2008 VA examination includes a medical history, reflecting that the Veteran has had back pain since active service and that he later noticed pain radiating into his left leg.  He reported flare-ups of pain with prolonged sitting, which was relieved by standing.  He did not use a cane or a brace, and he was able to walk for about thirty minutes or one-quarter mile.  He was prescribed medications by Emergency Room physicians.  The Veteran reported difficulties with prolonged sitting, standing, and driving a car.  He was not currently employed, and had not been prescribed bed rest by a physician.

The report of a July 2010 VA examination reflects progressively worsening back pain, with pain radiating to the anterior portion of his thighs and the inside of his legs.  The Veteran also reported some weakness in his legs when lying down, and reported using a cane to walk on occasion.  He also reported using a back brace, and he was able to walk approximately thirty minutes or for about two miles.  When he sat for a prolonged period, he felt "a knot" pop up in his lumbar spine; and with any kind of movement, he had significant pain.  He reported being afraid to lift objects, or to bend over to pick up objects.  He currently was not working.

In April 2013, the Veteran reported receiving several injections in his spine in 2010.  He reported that a physician then told him not to ride a lawn mower, push a lawn mower, use a weed eater, or use a post hole digger; and that using these items was bad for his back condition.  The Veteran reported that, currently, he could not sit down for long periods of time without raising up to relieve the pressure.

Pursuant to the Board's March 2013 remand, the Veteran underwent VA examinations.  Following examination in May 2013, a VA physician noted that the Veteran last worked in December 2008 as a custodian at a church; and that he previously worked as a truck driver for thirty years.  The Veteran reportedly retired due to low back pain with radiculopathy, and contended that he was unemployable from both physical and sedentary work.  He also reported that his nonservice-connected disabilities-consisting of gastroesophageal reflux disease, hypertension, hyperlipidemia, allergic rhinitis, colonic polyps, erectile dysfunction, and residuals of right tibio-fibular fractures-did not impact his ability to work.  The VA physician noted that the results of laboratory testing in 2007 and in 2008 also revealed diabetes mellitus.

In May 2013, another VA physician opined that the Veteran's low back disability did impact his ability to work.  Specifically, the VA physician found that the Veteran was unable to perform heavy lifting or prolonged walking or standing.

VA records show that the Veteran underwent an elective right L5-S1 laminectomy and diskectomy, foraminotomy, in June 2014.  Following the surgery, the Veteran remained stable neurologically, and his pain was well controlled.  Follow-up treatment in July 2014 reflects that the Veteran was doing well, and he reported that his leg pain was gone.  He reportedly still had some occasional back pain as was expected; however, the radiculopathy was markedly improved.  Records show that the Veteran ambulated well; he reported walking a half-mile daily and reported being off all pain medications.

Pursuant to the Board's April 2016 remand, the AMO submitted the case to the Director of Compensation Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b).

In February 2017, the Director of Compensation Service noted that the report of a May 2013 VA thoracolumbar spine examination included ranges of motion testing of the lumbar spine, and revealed a mild restriction of normal motion; and described the right lower extremity radiculopathy as mild.  The Director of Compensation Service also noted that a May 2013 examiner found that service-connected disabilities prohibited heavy lifting and affected prolonged standing or walking.  Of note, the Director of Compensation Service indicated that the Veteran was receiving Social Security benefits based on age, and not based on disability.  Nor was there any evidence of record reflecting that the Veteran could not work in a sedentary basis due to his service-connected disabilities.  Lastly, VA records following the June 2014 surgery revealed overall improvement in the Veteran's pain.  Following a review of the record, the Director of Compensation Service concluded that the evidence did not demonstrate that the Veteran was unable to secure and follow any substantially gainful occupation by reason of any service-connected disability, or by a combination of service-connected disabilities.

The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, 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.

Here, the Board finds that none of the VA examiners has described total occupational impairment.

The Veteran has asserted that he is unemployable due to service-connected disabilities.  To this extent, his statement is of some probative value.  Significantly, the Board finds that the Veteran's physical restrictions have been corroborated by VA examiners.  However, the Veteran also reported problems with prolonged sitting.  His work history reveals that he worked as a truck driver for thirty years.  No examiner has found that the Veteran is unable to perform occupational and gainfully sedentary work.  

The evidence does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities.  Ultimately, the Board places far more probative weight on his work history, as well as the results of recent evaluations of the Veteran's service-connected disabilities.  While the Board recognizes that the Veteran's prognosis for improvement remains guarded, the evidence does not support assignment of an extraschedular TDIU.   

In this case, the objective evidence simply does not demonstrate that the Veteran is unable to obtain or retain substantially gainful employment solely because of his service-connected disabilities.  The Board concludes that the objective evidence outweighs the Veteran's lay assertions regarding unemployability.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

The claim of entitlement to an extraschedular TDIU is denied.




____________________________________________
H. N. SCHWARTZ
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s