Citation Nr: 1761160
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 09-12 205 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
Veteran represented by: J. Michael Woods, Attorney
ATTORNEY FOR THE BOARD
R. Kettler, Associate Counsel
The Veteran served on active duty from June 1962 to May 1964 and a period of active duty for training from February 1988 to June 1988.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
The Board remanded the claim in November 2015 to refer the issue of entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) to the Director of Compensation Services.
By letter dated September 2017, the Veteran’s attorney submitted a motion to withdraw services as the Veteran’s representative. As good cause for the withdrawal of representation subsequent to the certification of the appeal to the Board, the attorney asserted that disclosure of the reasons for withdrawal would be unethical and were being omitted. Pertinent regulation states that after the AOJ has certified an appeal to the Board, a representative may not withdraw services in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of the representative; failure of the Veteran to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. 38 C.F.R. § 20.608(b)(2). The above attorney provided no reason whatsoever for his request to withdraw, so good cause is not shown. Therefore, he remains identified as the attorney of record in this appeal, and the Board denies his motion to withdraw.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.
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 is unemployable as a result of his service-connected disabilities.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist and to Notify
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 duty to assist argument). Further, the Board finds that the November 2015 remand directives have been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998).
II. Legal Analysis
Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, 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 fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App 361.
The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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, or 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. See 38 C.F.R. § 4.16(a) (2017).
Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA may submit the case to the Director of Compensation Service for consideration as to whether a TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b).
III. Merits of the Claim
The Veteran contends that his service-connected disabilities, specifically the disabilities of his lumbar spine and bilateral lower extremities, prevent him from obtaining and maintaining substantially gainful employment.
The Veteran is currently receiving compensation for degenerative disc disease and degenerative joint disease in the lumbar spine, rated as 40 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; and left lower extremity radiculopathy, rated as 10 percent disabling. Accordingly, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met.
The Veteran’s claim was referred to the Director, Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. In a March 2017 decision, the Director, Compensation Service denied entitlement to a TDIU on an extraschedular basis. The claim was referred to the Director, and was initially considered by him in accordance with 38 C.F.R. § 4.16(b), despite his denial, the Board now has the authority to assign an extraschedular total disability rating.
A review of the record shows that the Veteran has an eighth grade education with a work history that included being a farm hand, cook, janitor, and machinist. The Veteran is currently unemployed. It is the Veteran’s contention that he cannot maintain substantially gainful employment due to the increasing physical problems, specifically with his lower back. See April 2015 VA examination. He reports that he has difficulty with prolonged sitting and standing. He is unable to walk more than a few yards and he uses a walker for ambulation. Moreover, he complains of intermittent numbness in his feet. See May 2008 VA examination.
In May 1991, the Veteran’s doctor submitted a letter opining that the Veteran was completely disabled due to his lumbar sprain, hypertension, tachycardia, and depression. The doctor noted that the Veteran would never be able to return to work and placed all restrictions and limitations on his ability to work.
In August 1992, Dr. W.F. submitted correspondence noting the Veteran is totally and permanently disabled due to status-post compression fracture L-5 with degenerative changes.
In March 2008, the Veteran was afforded a VA spine examination. The examiner noted that the Veteran was in a motor vehicle accident at Fort Bragg in 1988. The examiner noted the Veteran retired following the accident due to a back injury. The Veteran stated he would have kept working but for the back condition.
Additionally, in March 2010, Dr. P.J.S. submitted a letter noting the Veteran is 100 percent disabled due to cervical stenosis, chronic low back pain, and hypertension. Dr. P.J.S. noted the Veteran’s extremity weakness results in him needing a dolomite walker in order to ambulate.
The Veteran was afforded another VA spine examination in November 2011. Again, the examiner noted that the Veteran was in a car accident at Fort Bragg in 1988. The examiner noted increasing back pain to the point where the Veteran uses a dolomite walker for ambulation. The examiner opined that the Veteran’s spinal condition impacts his ability to work in that he would not be able to do any walking or lifting.
As indicated above, the competent and probative evidence demonstrates that the Veteran’s service-connected degenerative disc disease and degenerative joint disease in the lumbar spine is productive of significant symptomatology that can be said to preclude substantial and gainful occupation.
As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unemployable. Therefore, the benefit of the doubt doctrine applies and a TDIU will be granted. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).
Entitlement to TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits.
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs