Citation Nr: 0006923 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-13 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from January 1942 to August 1942. The current appeal arose from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was most recently before the Board of Veterans' Appeals (Board) in June 1999 at which time the Board granted service connection for a left hip fracture as secondary to the service-connected traumatic arthritis of the lumbar spine, and remanded the issue of entitlement to a TDIU to the RO for further development and adjudication. In July 1999 the RO implemented the Board's June 1999 decision by issuing a rating decision reflecting a left hip fracture as secondary to service-connected traumatic arthritis of the lumbar spine with assignment of a temporary total convalescence evaluation effective from December 27, 1992 to January 31, 1993; a 100 percent evaluation effective February 1, 1993 to January 31, 1994, and a 30 percent evaluation effective February 1, 1994. The RO denied entitlement to an evaluation in excess of 40 percent for traumatic arthritis of the lumbar spine when it issued an unappealed rating decision in October 1999. A notice of disagreement has not been filed with this determination and it is not otherwise part of the current appeal. In October 1999 the RO affirmed the previous denial of entitlement to a TDIU. The RO has returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The veteran completed 7 years of schooling, has occupational experience as a construction worker, truck driver, and material checker driver, and has been unemployed since 1978. 3. The veteran's service-connected disabilities are traumatic arthritis of the lumbar spine, rated as 40 percent disabling; and a fracture of the left hip, rated as 30 percent disabling. The combined schedular evaluation is 60 percent. 4. Traumatic arthritis of the lumbar spine is productive of not more than severe limitation of motion. 5. The fracture of the left hip was reported to be productive of no residual disability in a September 1999 opinion of a VA examiner. 6. The veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, are not shown to be of such severity as to preclude him from following a substantially gainful occupation without consideration of his nonservice-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background On an income-net worth and employment statement dated in May 1979 the veteran reported that he had last worked in April 1978. He reported occupational experience as a material checker driver and as a construction worker. He indicated that he had completed 7 years of grade school. He recorded that the illnesses accounting for his inability to work were heart trouble, emphysema, back trouble, and nerves. In September 1979 the RO granted entitlement to a permanent and total disability rating for pension purposes effective from May 1, 1978. The disabilities reflected at that time were chronic obstructive pulmonary disease (COPD), rated as 60 percent disabling; hypertensive heart disease with congestive heart failure, rated as 30 percent disabling; arthritis of the lumbar spine, rated as 30 percent disabling; anxiety- depressive neurosis, rated as 10 percent disabling; nephritis, rated as noncompensable; and a right thigh scar, rated as noncompensable. In a March 1985 application for a TDIU the veteran reported that he had last worked in 1978, had occupational experience as a truck driver, and had completed 7 years of grade school. In a December 1995 statement a registered nurse advised that the veteran was in receipt of nursing home care on a custodial level due to inability to handle personal needs. Received in September 1996 was a statement referable to the new payment amount of disability benefits the veteran was receiving from the Social Security Administration. VA conducted a general medical examination of the veteran in November 1996. The examiner noted that the claims file was not available. He reported that he was diagnosed with rheumatoid arthritis years earlier. He started using a wheelchair in 1990, and had been on crutches since 1991. He had been using a walker for the past 3-4 years. He had been living in a private personal care home for the past two years. On examination the examiner noted that the veteran was a severely disabled handicapped person who was able to make one step only from the wheelchair to the scales using a walker and assistance from others. He was very unsteady on the scales and the examiner did not see any possibility of examining him on the examining table. The examination had to be performed in the wheelchair. Examination of the lower back pain and other bearing joints was unfortunately not possible in the wheelchair. The examination diagnoses were chronic low back pain due to trauma in service for which service connection had been granted; fracture of the left hip, with total replacement; rheumatoid arthritis, by history; total right knee replacement, due to degenerative joint disease; hypertension; and hearing loss. The examiner recorded that the veteran is definitely housebound and needed the assistance of another person with basic daily tasks. In January 1997 the RO, in pertinent part, granted entitlement to special monthly pension by reason of the veteran's being in need of the regular aid and attendance of another person. The disabilities reported were COPD, rated as 100 percent disabling; hypertensive heart disease with congestive heart failure, rated as 60 percent disabling; traumatic arthritis of the lumbar spine, rated as 40 percent disabling; right hip fracture, rated as 30 percent disabling; status post right knee replacement, rated as 30 percent disabling; anxiety and depressive neurosis, rated as 10 percent disabling; weakness of both legs, inflammatory polyarthropathy, fracture of the leg, loss of lovemaking ability, a scar on the right thigh, and nephritis, each evaluated as noncompensable. On file is a substantial quantity of VA and non-VA medical treatment reports pertaining for the most part to the veteran's nonservice-connected disabilities. VA conducted an orthopedic examination of the veteran in November 1998. On examination of the lumbar spine the examiner recorded that the veteran was not ambulating due to other considerations and it was difficult for him to move but he flexed to 15 degrees, extended to 0 degrees, and bilaterally bent to each side to 5 degrees. Deep tendon reflexes were uniformly symmetrical in the lower extremity muscle groups and sensation appeared to be intact. X-rays of the lumbosacral spine showed some decreased disc space and arthritis in the lower areas of the spine. He had especially decreased disc space at L4-5 and L5-S1 levels with anterior osteophyte formation. The examination impressions were status post hip fracture with an endoprosthesis of the left hip that was doing well at present, degenerative arthritis of the lower back that appeared to be moderately symptomatic, and a previous cervical injury that required a fusion and appeared to be moderately to severely symptomatic with residuals from a cervical intervention in 1996. In a December 1998 addendum to the November 1998 examination the VA examiner noted that veteran had sustained an injury in 1942 during boot camp wherein he had a snap with symptoms in the upper extremities. He was noted to have a myelopathy and problems with his cervical spine since that time. In 1992 he fell and fractured the left hip. After the hip fracture he had an endoprosthesis placed in the left hip and he had done well since that time. In September 1999 a VA examiner opined that the veteran had no residual disability from his left hip fracture. He stated that range of motion of the lumbar spine was not assessable. The veteran had been in a wheelchair for the last three years. He had not walked without significant gait aids for the last six years. He had diffuse myelopathy in both upper and lower extremities due to a cervical compression as a result of rheumatoid arthritis. He had had rheumatoid arthritis for 10 to 12 years. This was polyarticular involving the hands, wrists and knee as well as his cervical spine. Currently he complained of no pain in any of the anatomical regions requested for evaluation. He was in a nursing home and received physical therapy on a regular basis. In the examiner's opinion, any fatigue, weakness, functional impairment, or impaired coordination of the lumbar spine and left hip would not be due to the service-connected disabilities, but instead to the secondary medical issues at hand. In the examiner's opinion, the veteran was not able to secure and follow substantially gainful employment. Criteria Disability ratings are based on the average impairment of earning capacity resulting from disability. The percentage ratings for each diagnostic code, as set forth in the VA Schedule for Rating Disabilities codified in 38 C.F.R. Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disability shall be rated totally disabled. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rated is based on disability or a combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The determination of whether a total disability rating is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis In light of the veteran's contentions and the Court's determination in Proscelle v. Derwinski, 2 Vet. App. 629 (1992), the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that as a result of the June 1999 remand of the case to the RO for further development and adjudicative actions, VA has met its duty to assist the veteran in the development of his claim for a TDIU. In this regard, the RO endeavored to obtain documentation from the Social Security Administration and requested the veteran's help as well. No records were obtainable. The RO also granted service-connection for a fracture of the left hip as secondary to the previously service-connected arthritis of the lumbar spine. Moreover, a VA examiner rendered a professional opinion as to whether the veteran was able to work in light of the nature and extent of severity of his service-connected disabilities. The Board finds that a determination as to whether the record supports a grant of a TDIU may be made at this time with no need for any further development as all appropriate development has been accomplished. Prior to an actual consideration of whether service-connected disabilities have rendered the veteran unemployable for VA compensation purposes, it is well to review their respective nature and extent of severity. In this regard the Board reiterates that service connection has been granted for traumatic arthritis of the lumbar spine which the RO has rated as 40 percent disabling under Diagnostic Codes 5010- 5292. Service connection has also been granted for a fractured left hip which the RO has rated as 30 percent disabling under Diagnostic Code 5054. With respect to traumatic arthritis of the lumbar spine, the veteran is in receipt of the maximum schedular evaluation of 40 percent under Diagnostic Code 5292 which contemplates severe limitation of motion of the lumbar spine. A 50 percent evaluation under Diagnostic Code 5289 is not available since the veteran's traumatic arthritis of the spine has not resulted in unfavorable ankylosis of the lumbar spine. 40 percent is also the maximum evaluation under Diagnostic Code 5295 which contemplates severe lumbosacral strain. A 40 percent evaluation may be assigned for severe intervertebral disc syndrome while a maximum 60 percent evaluation may be assigned when this is pronounced. However, the veteran has not been diagnosed with intervertebral disc syndrome as part and parcel of his service-connected disability. Also, 60 percent evaluations are not warranted under Diagnostic Code 5285 since the veteran has not suffered a fracture of the spine or under Diagnostic Code 5286 since his lumbar spine is not ankylosed. It is well to note that a VA examiner quite frankly opined that the veteran's range of motion of the lumbar spine was not assessable in September 1999. In any event, the current maximum schedular evaluation of 40 percent contemplates severe limitation of motion, and in this regard, with application of all potential Diagnostic Codes, a higher disability evaluation is not possible. The Board notes that a maximum evaluation of 20 percent would be assignable under Diagnostic Code 5010 for traumatic arthritis of the spine, the limitation of motion of which is already considered under Diagnostic Code 5292. In any event assignment of a separate evaluation under Diagnostic Code 5010 would constitute pyramiding which is strictly forbidden. Esteban v. Brown, 6 Vet. App. 259 (1994). With respect to the service-connected left hip fracture, the Board notes that the RO has rated it as 30 percent disabling under Diagnostic Code 5054. This is the minimum rating assignable. The RO already assigned a 100 percent evaluation for the fracture based on hospitalization for prosthetic replacement of the head of the femur, additional 100 schedular evaluation for one year, and finally the minimum evaluation of 30 percent under Diagnostic Code 5054. The Board finds no basis upon which to predicate assignment of the next higher evaluation of 50 percent under this code which contemplates moderately severe residuals of weakness, pain, or limitation of motion. In this regard, in September 1999 the VA examiner opined that the veteran had no residual disability from his left hip fracture. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) (1999); however, the evidence fails to show that the service-connected disabilities in question are so exceptional or unusual as to warrant the assignment of an extraschedular evaluation. As indicated in governing regulations and Court precedents, 38 C.F.R. § 3.321(b)(1) applies in only "exceptional" cases where the ratings in the VA Schedule for Rating Disabilities are inadequate to compensate for the average loss of earning capacity attributable to specific disabilities. The notes that in Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. The Board notes that the RO discussed 38 C.F.R. § 3.321(b)(1) only with respect to the issue of a TDIU, not with respect to the service-connected disabilities, and such discussion was prior to the grant of service connection for a left hip fracture. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider unusual or exceptional. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). In this regard the Board notes that the low back and left hip disabilities have not required frequent inpatient care, and in the opinion of a VA medical professional, have not accounted for any inability of the veteran to work. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. Turning to the claim of entitlement to a TDIU, the Board notes it has reviewed the entire evidentiary record and finds that it does not support the claim. There is no doubt that the service-connected disabilities in combination enable the veteran to meet the schedular criteria for entitlement to a TDIU, but that is as far as they go. In Fisher v. Principi, 4 Vet. App. 57 (1993), the Court held that in a claim for a TDIU, if the rating did not entitle the veteran to a TDIU under 38 C.F.R. § 4.16(a) the rating board must also consider the applicability of 38 C.F.R. § 4.16(b)(1999). As the Board noted above, the schedular criteria for a TDIU have been met. Accordingly, a determination of whether the veteran, on an extraschedular basis, is unemployable by reason of his service-connected disabilities is not warranted. The record shows that the veteran has multiple seriously disabling nonservice-connected disabilities which have, in the opinion of competent medical authority of record, been determined as the source of the veteran's inability to work. In this regard the Board notes that a VA examiner has specifically addressed the issue as to whether service- connected disabilities account for the veteran's inability to work. As recently as September 1999 a VA examiner clearly opined that any fatigue, weakness, functional impairment, or impaired coordination of the lumbar spine and left hip would not be due to the service-connected disabilities, but instead to what he referred to as secondary or nonservice-connected disabilities. The veteran's nonservice-connected disabilities are multiple and include COPD, rated as 100 percent disabling, and hypertensive heart disease rated as 60 percent disabling. It was the examiner's opinion that the veteran was not able to secure and follow a substantially gainful occupation; however, he made it clear that such inability was not due to the service-connected disabilities. In this respect, the evidentiary record is clear and unequivocal. Accordingly, it is the determination of the Board that the veteran's service- connected disabilities, when evaluated in association with his educational attainment and occupational experience, have not rendered him unemployable for VA compensation purposes. As required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has considered all potential applicable versions of all pertinent regulations, whether or not they have been raised by the veteran. However, there is no regulation that provides a basis upon which to assign a TDIU for the reasons discussed herein. Lastly, while the Board has considered the doctrine affording the veteran the benefit of any existing doubt, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of that matter on that basis. 38 U.S.C.A. § 5107(b). Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a TDIU is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals