Citation Nr: 1228478 Decision Date: 08/17/12 Archive Date: 08/21/12 DOCKET NO. 06-34 477A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Lawrence Stokes, Jr., Agent WITNESSES AT HEARING ON APPEAL The Veteran and L.S. ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active military service from October 1986 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. In August 2008, the Veteran testified before a Veterans Law Judge at a hearing at the RO. During the hearing, the Veteran stated that due to the symptomatology of his service-connected Meniere's syndrome, he had lost his job at the United States Postal Service. He indicated that he was currently unemployed and that he was unable to maintain employment because of his Meniere's syndrome. The Board construed those statements as a raised claim of entitlement to a TDIU due to service-connected disabilities, and referred this claim to the RO for development and adjudication. A transcript of that hearing has been associated with the Veteran's claims folder. Thereafter, in the Board's February 2010 decision, it was noted the RO had not accomplished the requested development and adjudication of the Veteran's TDIU claim. However, the United States Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). See also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is not a free-standing claim which must be pled with specificity). Consequently, it was determined that the TDIU claim was properly before the Board, but again remanded for additional development. The Board notes that the Veteran filed a VA Form 21-526b in November 2011 requesting entitlement to service connection for an upper respiratory disorder and gastroesophogeal reflux disease (GERD), and entitlement to increased ratings for the already service-connected disabilities of allergic rhinitis, sinusitis, tinnitus, right foot pes planus, and a skin disorder, including tinea veriscolor and pseudofolliculits barbae. The Veteran's Agent also submitted a statement in June 2012 requesting a disability rating in excess of 30 percent for Meniere's syndrome. These issues have been raised by the record, but have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. As indicated above, the Veteran had a hearing before a Veterans Law Judge. However, that Veterans Law Judge is no longer employed by the Board. VA regulations require that the Veterans Law Judge who conducts a hearing shall participate in making the final determination of the claim. 38 C.F.R. § 20.707 (2011). The Veteran was notified in June 2012 that he had the right to request another hearing before a different Veterans Law Judge who would then decide this case. The Veteran did not respond, and his request for a hearing is considered satisfied. REMAND The Veteran contends he is unemployable on account of his service-connected disabilities and therefore entitled to a TDIU. He is currently service-connected for Meniere's syndrome, rated at 30 percent disabling; tinnitus, rated at 10 percent disabling; sinusitis, rated at 10 percent disabling; tinea veriscolor and pseudofolliculits barbae, rated at 10 percent disabling; pes planus of the right foot, rated at zero percent (noncompensable) disabling; and, allergic rhinitis, rated at zero percent disabling. His combined disability rating is 50 percent. A TDIU requires impairment so severe on account of service-connected disability that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2011). In making this determination, the critical 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). A TDIU may be assigned under 38 C.F.R. § 4.16(a) or (b), depending on whether the Veteran meets the threshold minimum disability rating requirements of 4.16(a). If there is only one service-connected disability, it must be rated as at least 60-percent disabling. See 38 C.F.R. § 4.16(a). If there is more than one service-connected disability, one disability must be rated at 40 percent or more, with a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran does not meet the minimum threshold disability rating requirements to warrant a TDIU under § 4.16(a). A TDIU also may be granted, however, on an extra-schedular basis under the alternative provisions of § 4.16(b) on the basis of unemployability alone, if due to service-connected disability. The Board must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App. 242 (2008). Under 38 C.F.R. § 4.16(b), the RO or Board should refer to the Director of Compensation and Pension Service or other appropriate authority for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See also Fanning v. Brown, 4 Vet. App. 225 (1993). His service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on this issue must be addressed. 38 C.F.R. § 4.16(b). While the regulations do not provide a definition of "substantially gainful employment," VA's Adjudication Procedure Manual defines the term as "employment at which non-disabled individuals earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." M21-1MR, Part IV, Subpart ii, ch. 2, sec. F(24)(c) (2012). Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment," noting the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991). That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad, 5 Vet. App. at 529. The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In the Veteran's case, a September 2002 Florida Department of Education Division of Vocational Rehabilitation determination, stated the Veteran met the criteria for significantly disabled due to one or more physical or mental impairments that seriously limits one or more functional capacities in terms of employment outcomes. In August 2008, the Veteran testified during his Travel Board hearing that he lost his job with the United States Postal Service because he could not perform his job in an efficient manner. A VA vocational rehabilitation treatment record, also dated in August 2008, indicated the Veteran was currently employed as an auto body technician. This treatment record also noted the Veteran was working towards a degree in the criminal justice field, with possible work as a probation officer. However, the Veteran expressed his concern that he will be unable to pursue this career path due to physical limitations. On his July 2010 TDIU application (VA Form 21-8940), the Veteran stated he has not worked since December 2008. Additionally, the Veteran's private treatment records from Dr. Daley, dating from November 2005 to April 2012, indicate the Veteran service-connected disabilities, specifically Meniere's syndrome, significantly limits his ability to qualify for certain jobs or career opportunities. A November 2007 statement from another private physician, Dr. Bash, stated the Veteran has not made any substantial income for many years due to his service related medical problems. In fact, Dr. Bash stated that it was his medical opinion that the Veteran cannot be employed full-time due to his service-connected disabilities. The Veteran most recently underwent a VA compensation examination in June 2011. During that examination, the examiner determined that the rhinitis and sinusitis have minimal impact on physical or sedentary employment, whereas the service-connected skin disorders have no impact on physical or sedentary employment. In contrast, the Veteran's pes planus of the right foot causes limitations on maximal mobility distances, but causes no significant impacts on light physical or sedentary employment. Finally, concerning the impact of the Meniere's syndrome, the examiner stated it would be unwise for the Veteran to pursue activities requiring continuing good balance, working from heights, climbing, or other activities where episodic symptoms, such as episodic vertigo, could place him at risk. However, sedentary employment was largely unaffected, aside from periodic sick leave use when he is symptomatic. The comments of the June 2011 VA examiner tend to suggest the Veteran is incapable of obtaining and maintaining a physically demanding type job on account of his Meniere's syndrome, but nonetheless is still capable of working in a more sedentary occupation. However, based on the evidence of record, it appears the Veteran's prior job history of United States Postal Service and auto body repairs are not sedentary in nature. Moreover, he has indicated he was continuing his education in an effort to become a probation officer within the criminal justice field. This evidence appears to reflect that the Veteran may be unemployable as a result of his service-connected disabilities even though the schedular requirements are not met. Consequently, the Board finds that this case must be referred to the Under Secretary for Benefits, Director of Compensation and Pension Service, or other appropriate designate for consideration of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following actions: 1. Refer the case to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b). 2. If after this special consideration a TDIU is not granted, send the Veteran and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim on this remaining basis. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).