Citation Nr: 1041384 Decision Date: 11/03/10 Archive Date: 11/12/10 DOCKET NO. 07-19 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU), to include the issue of whether the termination of TDIU benefits effective June 1, 2006 was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The RO in Seattle, Washington currently holds jurisdiction over the case. In June 2009, the Board remanded this case to the RO, via the Appeals Management Center (AMC), in Washington, D.C., to accommodate the Veteran's request for a Travel Board hearing. A hearing was scheduled for June 10, 2010, but the Veteran cancelled her hearing request on May 26, 2010. The Board, therefore, will proceed with appellate review. FINDINGS OF FACT 1. The Veteran was in receipt of an award of TDIU benefits from September 29, 2001 to June 1, 2006. 2. The RO's March 2006 decision, which reduced the Veteran's TDIU award effective June 1, 2006, does not reflect consideration of the provisions of 38 C.F.R. § 3.343(c) prior to the reduction action. CONCLUSION OF LAW The RO's March 2006 decision, which reduced the Veteran's TDIU award effective June 1, 2006, is void ab initio. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.343 (2010); Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had been in receipt of an award of TDIU benefits effective September 29, 2001. The RO terminated these benefits effective June 1, 2006. The Veteran seeks restoration of her TDIU benefits arguing that her service-connected disabilities render her unemployable, and that her disabilities have not undergone improvement since the initial TDIU award. The facts of this case may be briefly summarized: The Veteran is service-connected for right sural nerve compression syndrome with total loss of dorsal flexion, rated as 30 percent disabling effective May 28, 1999; lumbosacral strain with degenerative disc joint changes, rated as 20 percent disabling effective January 10, 1996; left knee strain, rated as 10 percent disabling effective September 1, 1993; right knee strain, rated as 10 percent disabling effective June 1, 1997; status post right ankle cuboid fracture with exostosis removal, rated as 10 percent disabling effective August 1, 1999; tonsillectomy, rated as noncompensable effective September 1, 1993; and pilonidal sinus repair, rated as noncompensable effective September 1, 1993. In February 2002, the Veteran submitted an application for TDIU benefits reflecting that she had been unemployed since September 28, 2001. The Veteran reported that a 45-minute work commute aggravated neck and back pain, and that she had difficulty using the stairs to reach her second floor office. At that time, the Veteran attached a "Notification of Personnel Action" reflecting that the Veteran had resigned from federal employment earning a basic pay of $34,362. This form noted the reason for resignation as "[t]o spend more time with family." Notably, the Veteran has attained an educational level of a graduate degree and has occupational experience as an accounting technician, and an accounting and finance officer. TDIU 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 as 60 percent or more, and that, 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. 38 C.F.R. § 4.16(a). Factors to be considered will include the veteran's employment history, educational attainment and vocational experience, but marginal employment is not to be considered substantially gainful employment. Id. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Entitlement to TDIU, however, is predicated upon an inability to secure and follow "substantially gainful employment." 38 C.F.R. § 4.16(a). For purposes of 38 C.F.R. § 4.16(a), marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reasons for termination. Id. In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the United States Court of Appeals for Veterans Claims (Court) held that "substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history. In a February 2002 decision, the RO awarded the Veteran entitlement to TDIU effective September 29, 2001. The RO properly concluded that the Veteran met the criteria for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) as the right sural nerve compression and right ankle strain derived from the same common etiology. However, it is unclear how the RO reached the determination that the Veteran's service-connected disabilities precluded her from obtaining and maintaining substantially gainful employment. In this respect, there was no medical opinion of record suggesting that the Veteran was unemployable due to service-connected disability and evidence, as cited above, that indicates the Veteran was unemployed to spend more time with her family. In September 2005, VA's Compensation and Pension (C&P) Service requested an administrative review of the RO's February 2002 decision awarding the Veteran entitlement to TDIU. VA's C&P service noted that there was insufficient medical or other evidence showing that the Veteran was unemployable due to service-connected disability. It was further noted that the award of TDIU was questionable and likely incorrect. VA's C&P service suggested that the RO schedule a VA examination with an opinion from the examiner regarding whether the Veteran is disabled solely due to service-connected disabilities, and take any necessary corrective actions. The RO obtained a VA C&P examination report, dated November 2005, which included the following opinion: "The patient is not unemployable and would do well in a sedentary job. She appears to be quite bright and capable today." The accompanying clinical records included no opinion regarding the Veteran's employability. It is clear that the RO properly complied with the procedural actions required by 38 C.F.R. § 3.105(e) prior to terminating the TDIU benefits. However, the RO's rating reduction was not in accordance with law and regulations governing the termination of TDIU benefits. Quite simply, the RO simply never considered the provisions of 38 C.F.R. § 3.343(c), pertaining to continuance of total disability ratings, which state that an award of TDIU benefits cannot be terminated unless actual employability is established by "clear and convincing evidence." See generally Herndon v. Principi, 311 F.3d 1121, 1125 (Fed. Cir. 2002) (noting that the provisions of 38 C.F.R. § 3.343(c) require that "[a]ctual unemployability to terminate TDIU be established by 'clear and convincing evidence.'") In terminating the award of TDIU, the RO did not cite the provisions of 38 C.F.R. § 3.343(c) or use language which shows that these provisions were implicitly utilized. The medical opinion obtained, dated November 2005, also did not address this matter with the level of certainty required by 38 C.F.R. § 3.343(c). As such, the Board has no option but to conclude that the RO terminated the TDIU benefits under the wrong standard of review. The Court has held that when VA has reduced a veteran's rating without observing applicable laws and regulation, such a rating is void ab initio and should be set aside as "not in accordance with the law." See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Horowitz v. Brown, 5 Vet. App. 217 (1993); Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993); 38 U.S.C.A. § 7261(a)(3)(A). In this case, it appears that the RO awarded TDIU benefits in error. However, once those benefits were awarded, the Veteran was afforded legal protections. The RO has power to revise or reverse the initial decision based upon clear error, see 38 C.F.R. § 3.343(a), or by finding that the Veteran is actually employable by clear and convincing evidence. 38 C.F.R. § 3.343(c). The RO has not utilized any of these accepted reduction standards. Accordingly, the RO's March 2006 reduction of the Veteran's TDIU benefits effective June 1, 2006 is void ab initio. The appeal, therefore, is granted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER The reduction in the award of TDIU effective June 1, 2006 was improper; restoration of the TDIU rating is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs