Citation Nr: 1300499 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 08-10 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1973 and from January 2002 to February 2005. This case arises to the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, that, in pertinent part, granted connection for status post ventral hernia with mesh and surgical scar, and assigned a 20 percent schedular rating, effective from February 25, 2005. The Veteran appealed for a higher initial rating. In a March 2010 Board remand, the Board determined that a medical examination was needed prior to rating the ventral hernia. The Board also found that a TDIU claim had been raised by the record. The Board assumed jurisdiction over the implied TDIU claim pursuant to a recent holding of the United States Court of Appeals for Veterans Claims (hereinafter: the Court). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the ventral hernia rating issue and the TDIU claim for development. In November 2010, the Board denied an initial schedular rating greater than 20 percent for the ventral hernia and denied an extra-schedular rating for the ventral hernia. Thus, the only issue that remains on appeal is entitlement to TDIU. In November 2010, the Board remanded that claim for more development. In January 2011, a copy of the November 2010 Board decision that was sent to the Veteran was marked undeliverable and returned to the Board. FINDINGS OF FACT 1. Evidence showing that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities has not been submitted or obtained. 2. The Veteran failed to return a completed VA Form 21-8940 or otherwise report to VA his employment history, his education and vocational attainment, or any other factor or factors having a bearing on employability. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 U.S.C.A. § 5103); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, VA's Appeals Management Center (hereinafter: AMC) has completed all remand orders to the extent possible. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a May 2012 letter, the AMC furnished all notices required. The letter provided the claimant with the criteria for TDIU and the evidence needed. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA clinical records. The Board remanded the case so that that claimant could be provided VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which is the application form for a TDIU, the purpose of which is to gather information about employment history and educational background that is relevant to the TDIU claim. The claimant did not return the form, and therefore, pertinent information is lacking. SSA records are not available. The claimant was afforded a VA medical examination in June 2010. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Entitlement to TDIU In the context of his appeal for a higher disability rating for his service-connected ventral hernia, the Veteran made some assertions which the Board construed as a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). For example, in July 2009, the Veteran testified before the Board that he stopped working full-time in 2005 after being discharged from active military service. He testified that he was in VA vocational rehabilitation, hoping to retrain in another field of work. His military occupational speciality in service was military police. He did not contend that any of his other service-connected disabilities affected his employability, nor did he disagree with or appeal the disability ratings assigned for those disabilities, but rather he only indicated that his ventral hernia restricted him in such a way as to affect employability. The issue for resolution, therefore, is whether the service-connected ventral hernia prevents the Veteran from engaging in substantially gainful employment. The Veteran's DD Form 214 reflects that he graduated from high school and then received military police training in the Army. After his first period of service, he had service over the years in the Army Reserve and National Guard. He was called to active duty in 2002 and served active duty until his discharge in 2005. In a June 2010 VA hernia compensation examination report, the examiner noted that the Veteran's VA treating physician had found that the service-connected ventral hernia limited his lifting no more than 20 pounds, required resting every two hours, limited physical exertion to no more than 5 minutes in two hours, and limited bending and twisting of the torso. The Veteran reported flare-ups of severe pain about twice per week. The report also notes that the hernia would have significant effects on the Veteran's previous occupation. A TDIU claim "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran 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, such disability shall be ratable as 60 percent or more and 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) (2012). Age may not be considered as a factor in evaluation service-connected disability; and unemployability, in service-connected claims, 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 (2012). The Veteran does not have a service-connected disability rated at 60 percent. Specifically, he has a 20 percent rating for a ventral hernia, a 10 percent rating for a hernia surgery scar, a 10 percent rating for sinusitis, a 10 percent rating for tinnitus, and a noncompensable rating for a bilateral hearing loss disability. His combined schedular rating is 40 percent. Therefore, his service-connected disabilities do not meet the schedular guidelines provided for consideration of a TDIU pursuant to § 4.16 (a). The next subsection, 38 C.F.R. § 4.16 (b), provides alternate criteria for awarding TDIU. The provisions of § 4.16(b) allow for extra-schedular consideration of cases in which Veterans who are unemployable due to service- connected disabilities but who do not meet the percentage standards set forth in § 4.16(a). There must be a determination that the service-connected disability is sufficient to produce unemployability without regard to advancing age or non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The question is whether the Veteran is capable of performing the physical and mental tasks required of employment, not whether the Veteran can find employment. Id. As noted above, the Veteran has not made a formal claim for TDIU. Rather, this is an implied claim, based on the Veteran's substantive appeal for a higher rating for his ventral hernia, wherein he stated his painful hernia "...has a significant effect on occupations..." Pursuant to the Board's March 2010 remand instruction, VA's Appeals Management Center (hereinafter: AMC) forwarded a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to the Veteran in May 2010, but never received a reply from the Veteran. Thus, pertinent information is missing. Such information includes the date of last employment, whether Social Security Administration (SSA) benefits are paid, the Veteran's earnings history, and his education level and training level. The Veteran has provided no indication that he desires to submit such information or even to pursue the TDIU claim. In June 2012, the RO made a formal finding of fact that no SSA records are available. In its March 2010 remand instruction, the Board requested that a physician examine the Veteran, review the record, and "render an opinion as to whether the Veteran's service-connected ventral hernia renders him unable to obtain or retain substantially gainful employment." The physician opined that the ventral hernia would not preclude all forms of employment. In December 2010, pursuant to the Board's November 2010 remand instruction, the AMC sent to the Veteran another VA Form 21-8940. This letter was returned as undelivered, but in February 2011, a copy was sent to another address, and this letter was not returned. However, the Veteran failed to return that form also. The Veteran's representative argued in November 2012 that the denial of an extra-schedular rating claim for the ventral hernia by VA's Compensation and Pension Service was due, in part, to deficiencies in AMC's letter to VA's Compensation and Pension Service. The representative alleged that the AMC letter does not conform to the requirement for such letters, as set forth at 38 C.F.R. § 4.16 (b). 38 C.F.R. § 4.16 (b) states, in part, "The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue." The representative argued that the AMC's letter failed to include a full statement as to the Veteran's educational and vocational attainment. In evaluating the representative's allegation, while any reasonable doubt on any material issue is resolved in the Veteran's favor, in this case, the AMC's request letter was as complete as possible, given that the Veteran failed to return a completed VA Form 21-8940, which would have supplied the necessary information to the AMC. The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating (for any or all service-connected disabilities) is warranted is unnecessary. The established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of any service-connected disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization (the Veteran never returned a formal claim for TDIU); and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). The law provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence does not suggest that the service-connected disabilities ventral hernia has resulted in unemployability under 38 C.F.R. § 4.16(b) or on an extra-schedular basis under 38 C.F.R. § 3.321(b). After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. TDIU must therefore be denied. ORDER Entitlement to TDIU is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs