Citation Nr: 0000380 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-10 669 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a total disability compensation rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Cooper, Associate Counsel INTRODUCTION The veteran served on active duty from April 1962 to July 1982. This case comes to the Board of Veterans' Appeals (Board) from a December 1997 RO decision which denied a claim for a TDIU rating. A personal hearing was held at the RO in September 1998. FINDINGS OF FACT 1. The veteran's service-connected disabilities include sinusitis (rated 50 percent), tinnitus (rated 10 percent), status post fracture of the right middle finger (rated noncompensable), status post fracture of the left middle finger (rated noncompensable), status post right wrist fracture (rated noncompensable), and bilateral hearing loss (rated noncompensable); his combined service-connected disability rating is 60 percent. 2. The veteran has a high school education with one year of college, and employment experience in cabinet installation; he last worked in 1992. 3. His service-connected disabilities do not preclude substantially gainful employment. CONCLUSION OF LAW The requirements for a TDIU rating have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Air Force from April 1962 to July 1982, when he retired based on completion of over 20 years of service. The veteran's service-connected disabilities include sinusitis (rated 50 percent), tinnitus (rated 10 percent), status post fracture of the right middle finger (rated noncompensable), status post fracture of the left middle finger (rated noncompensable), status post right wrist fracture (rated noncompensable), and bilateral hearing loss (rated noncompensable); his combined service-connected disability rating is 60 percent. In a December 1995 letter (addressed to a state vocational rehabilitation department), Harry L. Pearce, M.D. described the veteran's orthopedic problems, which primarily involved the spine. It was noted the veteran previously had a lumbar spine discectomy and now had related degenerative changes and leg weakness. The veteran walked with a cane and had an antalgic gait. The doctor also described significant impairment associated with degenerative changes of the cervical and dorsal spine. In a September 1996 letter (sent to an attorney who was handling the veteran's claim for Social Security Administration (SSA) disability benefits), Frederick N. Klippert, M.D. noted he had treated the veteran since 1995 and that the veteran had a long history of recurrent chronic sinusitis for which he underwent nine surgeries beginning in 1968. Dr. Klippert indicated that, despite aggressive medical therapy and further surgical procedures in 1996, the veteran continued to have problems with recurrent nasal polyps and pansinusitis. The doctor opined that the veteran was precluded from performing any gainful employment due to sinus headaches and the effects of medication required to alleviate the headaches. Harry Snowdy, M.D. issued statements in October 1996 and December 1996 in connection with the veteran's claim for SSA disability benefits. Dr. Snowdy indicated that the veteran had undergone cervical spine operations in October and November 1996 secondary to cervical spondylotic myelopathy. The doctor noted the veteran had extreme weakness from the cervical spine condition, had trouble walking, and had to wear a cervical Halo device. The doctor stated that the veteran was unable to work and could require more cervical spine surgery in the future. A January 1997 decision by the SSA reveals that the veteran was awarded SSA disability benefits based on cervical spondylitic myelopathy, recurrent nasal polyposis, depression, status post cervical spine fusion and decompression, and status post L-3, 4 diskectomy. The veteran was found to be disabled since 1995. While the decision notes evidence concerning sinusitis, it primarily discusses impairment from postoperative cervical spine and low back disorders. On VA audiology examination in January 1997, the veteran reported bilateral hearing loss and tinnitus. He also reported episodic disequilibrium, which was associated with chronic sinus headaches. He indicated that he had 20 years of military noise exposure. Audiometric test results were within normal limits through 2000 hertz, sloping from a moderate sensorineural hearing loss at 3000 hertz to severe from 4000 hertz to 8000 hertz, bilaterally. Speech discrimination was good, bilaterally. On VA examination in February 1997, the veteran presented in a sterno-occipital mandibular immobilizer (SOMI) neck collar. It was noted that the veteran was status post cervical fusion in 1996 secondary to possible cervical myelopathy. The veteran related a long history of chronic sinus disease including multiple sinus procedures with sinus ablation in July 1996. The veteran complained of tenderness over the forehead and frontal sinuses. He indicated that he had daily sinus headaches and suffered from frequent sinus infections. On physical examination, it was noted that the sinuses did not transilluminate. The examiner indicated that the sinuses were tender to palpation and percussion, particularly the frontal sinuses. A well-healed scar, consistent with previous sinus surgery was observed on his forehead. Physical examination of his left hand and wrist showed normal dorsiflexion of the wrist to 80 degrees, palmar flexion of 75 degrees. Physical examination of the digits revealed that the distal interphalangeal (DIP) joint of the long finger of the left hand had flexion to only 50 degrees, but was not limiting. It was noted that radiographs of the veteran's sinuses showed air fluid levels consistent with chronic sinusitis. X-rays of the wrists were normal. The diagnostic assessments were status post wrist fracture, doing well; chronic sinusitis, refractory to current treatment; and status post finger fracture with loss of DIP motion, nonlimiting. In a September 1997 letter, Stephen B. Kupferberg, M.D. (a VA physician) indicated that that the veteran continued to have headaches and discomfort due to pansinusitis and nasal polyposis. It was noted that the veteran was unable to obtain gainful employment due to such symptoms. The doctor related that the veteran's chronic sinusitis and polyposis were extremely difficult to control with either medical or surgical therapy. In November 1997, the veteran submitted a claim for a TDIU rating. He asserted that he was totally disabled and unemployable due to chronic sinusitis with related headaches. He reported that he had one year of college education and last worked full time in December 1992 performing cabinet installation. He stated that his disability affected full- time employment beginning in December 1995. The veteran related that he had not tried to obtain employment since he became too disabled to work. An employment information form (VA Form 21-4192) from the veteran's last employer was submitted in December 1997. His former employer indicated that the veteran had worked installing cabinets and terminated employment in December 1992 because he "said he hurt his back and has made a living off Workmans Comp." In an April 1998 statement, Dr. Kupferberg (VA doctor) related that the veteran remained under treatment for chronic sinusitis and polyposis, that the condition had been difficult to control with medical and surgical treatment, and that it has not allowed the veteran to gain employment at the present time. During a September 1998 RO hearing, the veteran essentially claimed he could not work due to his service-connected sinusitis. He maintained that he had severe headaches, pain, pressure, blurred vision, dizziness, and frequent nosebleeds as a result of his sinus condition. The veteran said his last sinus surgery was in 1996. He stated that he took several prescription medications for sinus pain as well as for his cervical spine condition. He said that his doctors advised him against working due to the effects of the medication and pain. The veteran indicated that he wore a cervical collar due to neck surgery. II. Analysis The veteran has presented a well-grounded claim for a TDIU rating within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. There is no further VA duty to assist the veteran in developing facts pertinent to his claim. Id. Total disability ratings for compensation based on 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these 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, and consideration is to be given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The veteran's combined service-connected disability rating is 60 percent. The veteran does not satisfy the percentage rating standards for individual unemployability benefits, although consideration to such benefits on an extraschedular basis may be given. The issue is whether his service- connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant 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, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The medical evidence of record reflects significant non- service-connected disorders, particularly of the spine. Impairment from non-service-connected disorders may not be considered in support of the claim for a TDIU rating. 38 C.F.R. §§ 4.14, 4.19. The veteran's education includes one year of college, and he has post-service employment experience in cabinet installation. He last worked in 1992 and reportedly stopped work due to a non-service-connected low back condition, and since then he has had extensive treatment for both cervical spine and lumbar spine disorders. There is no indication that the veteran stopped working due to service-connected sinusitis or any other service-connected disability. He has been awarded SSA disability benefits based on a combination of non-service-connected cervical spine, low back, and psychiatric disorders and service-connected sinusitis. However, the SSA decision clearly indicates the veteran's major impairment is his non-service-connected spine disorder. The medical evidence shows minimal impairment from the service-connected tinnitus (rated 10 percent), and no impairment from the service-connected disabilities which are rated noncompensable. The veteran maintains that he is unable to work due to his service-connected sinusitis (rated 50 percent). While the Board notes the doctors' statements submitted by the veteran, to the effect that his sinusitis prevents him from working, the weight of the probative medical evidence is to the contrary. As noted, the veteran terminated his last job as a cabinet installer due to a non- service-connected back condition. While he has received treatment for his sinus condition since then, at his 1998 hearing he reported his last sinus surgery was in 1996 and the condition was being treated with medication. The medical records as a whole do not demonstrate that the veteran is incapable of performing his previous work in cabinet installation or other forms of similar work (for which he is qualified be his employment experience and education which includes a year of college) due solely to his sinusitis and other service-connected conditions. Rather, the evidence shows the veteran is not working because of serious non- service-connected spine conditions which require use of a cervical brace, a cane to ambulate, etc. While the veteran's service-connected disabilities may limit him from some forms of work, they do not prevent all substantially gainful employment for which he is qualified by reason of his education and work experience. The high combined 60 percent compensation rating currently assigned for his service-connected conditions is recognition that such conditions would make it difficult to perform some forms of work, yet the evidence fails to show that service-connected conditions prevent him from performing the physical and mental acts required for employment for which he is qualified. There are no unusual factors which might make his case different from similarly rated veterans. Van Hoose, supra. In sum, the veteran's service-connected disabilities do not prevent gainful employment, and the criteria for a TDIU rating are not met. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for a TDIU rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER A TDIU rating is denied. L. W. TOBIN Member, Board of Veterans' Appeals