Citation Nr: 1300565 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-32 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. The propriety of the discontinuance of a total disability rating for compensation purposes based upon individual unemployability (TDIU) due to service-connected disabilities. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for renal insufficiency. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and December 2008 rating decisions of the RO in St. Petersburg, Florida. A review of the Virtual VA folder reveals an additional rating decision and VA outpatient treatment records that may be pertinent to the present claims. Any further consideration of these appeals should include review of the Virtual VA folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). a. Renal Insufficiency Regarding the issue of whether new and material evidence has been received to reopen a claim of service connection for renal insufficiency, the claim was denied in December 2008. The Veteran filed a notice of disagreement in September 2009. Notably, he also filed new evidence along with his notice of disagreement and the claim was again denied in a September 2010 rating decision. However, a Statement of the Case (SOC) was not issued with respect to his notice of disagreement. The Veteran is entitled to a SOC. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that, when an appellant files a timely notice of disagreement as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the claim for the issuance of an SOC. On remand, issue an SOC for the claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for renal insufficiency. b. TDIU At the outset, the Board acknowledges that while the present appeal has been pending, a February 2012 rating decision granted a total disability rating for service-connected smoldering multiple myeloma, effective September 20, 2011. He was also granted a special monthly compensation at the housebound rate in addition to that total rating, also effective September 20, 2011. Thus, the period of concern is only prior to September 20, 2011. Cf. Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran was granted a total disability rating based upon individual unemployability by a rating decision dated in March 2006. At that time, he was service connected for posttraumatic stress disorder (30 percent), lumbar spine disability (40 percent), diabetes mellitus, type II (20 percent), and nonproliferative diabetic retinopathy (10 percent). His combined service-connected disability rating was 70 percent. The March 2006 rating decision emphasized the Veteran's "special risk retirement" and various events at work whereupon it appeared that his psychiatric disability had limited his ability to work and led to his retirement. The rating decision also noted that he had significant lumbar spine disability and that with all of his service-connected disabilities combined, it would be extremely difficult for him to obtain or maintain employment. Subsequently, in May 2007, the RO received an employment questionnaire in which the Veteran was identified as self-employed and that the type of work was "wood hauling." The report indicated that he worked approximately 15 hours per week. Accompanying the May 2007 employment questionnaire was the Veteran's 2006 Schedule C, profit or loss report (sole proprietorship) for tax purposes. The Schedule C indicated that the Veteran received over $35,000 in gross receipts and/or sales and a net loss of $7,104. The Veteran was listed as the proprietor. A statement by the Veteran and submitted along with the tax report explained that the Veteran's earnings were from wood given to him by tree surgeons. The statement also indicated that he sold the wood to various timber mills. In June 2011, the Veteran reported that he never actually submitted the May 2007 employment questionnaire and that it must be a forgery. In other statements of record the Veteran's overall argument was that any income received from the wood hauling operation was marginal employment. See statements dated in November 2007, October 2008, February 2010, DRO transcript, and October 2012 Informal Hearing Presentation. Under 38 C.F.R. § 4.16(a), the Veteran is entitled to TDIU even if he is marginally employed, if he is unable to secure or follow a substantial gainful occupation as a result of service-connected disabilities. See 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. Marginal employment may also 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. 38 C.F.R. § 4.16(a). In July 2007, the RO advised the Veteran that it proposed to discontinue his total disability rating on the basis that the Veteran's report of gross sales over $35,000 exceeded the poverty threshold in 2006. The Veteran requested a hearing on the matter, within the 60-day period allocated by the RO. In November 2007, the Veteran submitted a statement arguing that his activity did not rise to the level of substantial, gainful employment. He submitted a Social Security Administration statement that showed that his "social security" earnings for 2006 and 2007 were $0. He also appeared at a Decision Review Officer (DRO) hearing in December 2007 to argue his case where he again explained that he was not substantially, gainfully employed. He reasoned that his income was more like investment income in that he simply made money from the sale of wood rather than any actual employment. See DRO hearing transcript [T] pages 5, 8. He explained that in 2005, following a major storm, he noticed his neighbors paying tree surgeons to haul away wood. T. page 5. He discovered that the tree surgeons were taking the wood to the local dump and paying fees associated with dumping the wood as well as renting trucks and leasing machinery. The Veteran realized that people were paying to waste raw material that could be used for other things. T. page 5. In response, he offered his truck to the tree surgeons and began an operation in which the tree surgeons (or other drivers) would deliver the wood to a mill. T. page 4. He reported that it was a savings for them and profit for him. T. page 5. He testified that he arranged to have a mid-sized truck modified for this process. T. pages 5, 7. He also testified that he purchased the machinery that the tree surgeons would have otherwise had to lease. T. page 7. He hired people to produce the wood and get it to the wood mill. T. page 6. He was then paid for the wood by a broker. Id. He testified that he did not do any of the physical labor or driving of the truck. T. page 6. The Veteran asserts that he did not actually earn money over the poverty threshold because his 2006 profit/loss statement indicates a loss greater than $7,000 after subtracting all of his costs and expenses from the approximately $35,000 gross receipts. At his DRO hearing, he also explained that the gross receipts were actually only $34,000 because he had $1,000 of his own money. T. page 6. Moreover, he explained that the wood hauling activity is sporadic, with some months resulting in more activity than others. T. pages 8-9; see also January 2009 statement. The Veteran's November 2007 written statement also explained the process of how the Veteran provided his equipment to various tree surgeons, the wood to be delivered to a mill, and that he was paid for the wood by the mill. Notwithstanding the Veteran's explanation of his wood hauling activity, the RO issued a rating decision in July 2008 determining that the TDIU would be discontinued effective in November 2008. The question here is whether the operation of the wood hauling business is clear and convincing evidence that the Veteran is capable of securing and following substantial employment, or whether it is merely evidence that he is capable of marginal employment in a protected environment. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a) (2012). In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. When in such a case the veteran is undergoing vocational rehabilitation, education or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her, or unless the physical or mental demands of the course are obviously incompatible with total disability. Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718 shall be considered evidence of employability. 38 C.F.R. § 3.343(c)(1) (2012). The "clear and convincing" standard requires that the capacity for work be proven to a "reasonable certainty of the truth of the fact" but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan v. West, 13 Vet. App. 48, 55 (1999) (citing Olson v. Brown, 5 Vet. App. 430, 434 (1993)). If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. 38 C.F.R. § 3.343(c)(2) (2012). Also, in Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held that where the veteran becomes employed, as shown by clear and convincing evidence, at a substantially gainful occupation-i.e., one that provides 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 prior to his having been awarded a 100% rating based on individual unemployability-such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). The Board finds it necessary to obtain a VA Social and Industrial Survey for purposes of determining the propriety of the discontinuance of the TDIU under 38 C.F.R. § 3.343 to address the questions noted above. Lastly, in order to ensure that all of the pertinent treatment records are of record, any outstanding VA outpatient treatment records should be obtained. A review of the claims file (virtual and paper) reveals treatment records from the Gainesville VAMC are of record dated from January 2004 to June 2004, February 2010 to July 2010, and from August 2011 to September 2011. As the Veteran has also indicated that he was treated at the Gainesville VAMC numerous times in 2006 and 2007, any outstanding treatment records should be obtained. [The Board further notes for the record that in addition to service connection for smoldering multiple myeloma, during the course of the appeal, in a February 2010 rating decision, service connection was established for left lower extremity radiculopathy associated with chronic low back pain and assigned a 10 percent rating effective from October 26, 2009. In a March 2010 rating decision, service connection was established for erectile dysfunction associated with diabetes mellitus and special monthly compensation based on loss of use of a creative organ effective from September 14, 2009.] Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the Veteran and his representative, addressing the December 2008 decision that denied the claim to reopen a claim of entitlement to service connection for renal insufficiency. The Veteran should be advised of the time period in which a substantive appeal must be filed in order to obtain appellate review of this claim for service connection. 2. Obtain any outstanding VA outpatient treatment records from the VAMC in Gainesville, Florida dated from June 2004 to February 2010, and from July 2010 to September 2011. Any negative response should be noted. 3. Following receipt of any treatment records, the RO/AMC should afford the Veteran a VA Social and Industrial Survey for the purpose of ascertaining the Veteran's "actual employability" at the time of discontinuance of TDIU effective November 1, 2008. The examiner should review the claims file and indicate that such review has occurred. The examiner is asked to provide an opinion on whether to a reasonable certainty, the Veteran's engagement in the logging business/activity showed the Veteran was capable of obtaining and maintaining "substantially gainful employment" at the time of the 2008 TDIU termination. In this regard, the examiner should consider and discuss whether such activity constituted "marginal employment" and whether such activity constituted "employment in a protected environment" akin to a family business or sheltered workshop. In offering any opinion, the examiner must consider the full record, to include the Veteran's service-connected disabilities at that time (PTSD, lumbar spine disability, diabetes mellitus, and nonproliferative diabetic retinopathy), and his statements. The rationale for any opinion offered should be provided. If the examiner is unable to render an opinion without a resort to speculation, then the examiner must explain why this is so. 4. Thereafter, readjudicate the issue of the propriety of the discontinuance of a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities under 38 C.F.R. § 3.343. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).