Citation Nr: 1302391 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 07-24 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) including on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty in the United States Army from September 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 2009, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Acting Veterans Law Judge (AVLJ). A transcript of that hearing has been associated with the Veteran's VA claims file. In January 2010, November 2010, and October 2011, the Board remanded the Veteran's claim for additional evidentiary development. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the case was referred the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extra-schedular evaluation and an opinion was obtained. The case has been returned to the Board and is ready for further review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The medical evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as the result of his service-connected right ankle disorder. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.§ 4.16(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "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(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). In Moore, the Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). 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. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation 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 at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the Veteran's service-connected disabilities are right ankle fusion, evaluated as 20 percent disabling, effective October 26, 2005, 100 percent disabling, effective November 2, 2009, and 30 percent disabling, effective March 1, 2010; diabetes mellitus, evaluated as 20 percent disabling, effective January 18, 2008; tinnitus, evaluated as 10 percent disabling, effective May 15, 2006; and hearing loss, evaluated as noncompensably disabling, effective January 19, 2006. The combined schedular rating for his service-connected disabilities is 20 percent, effective October 26, 2005; 30 percent, effective May 15, 2006; 40 percent, effective January 18, 2008; 100 percent, effective November 2009; and 50 percent, effective March 1, 2010. Therefore, the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), for the periods during which the Veteran was not in receipt of an evaluation of 100 percent, are not met. 38 C.F.R. § 4.16(a). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b) (2012). Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC. 6-96 (1996). This means that the Board should take into account the Veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. The Veteran indicated that his right ankle disorder prevents him from working. On his December 2010 VA Form 21-8940, he reported that he last worked full time in 2008 at a paint and body shop. He reported his occupation to be auto body repairman. He indicated that he had a 12th grade education with no further training, and that he worked in the body shop all his life, from 1969 to 2008. The Court has held that the threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the present case, the Veteran's service-connected right ankle disorder is evaluated based on the degree of disability of the ankle due to malunion of the tibia and fibula. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). As the November 2010 Board decision held, the medical evidence showed that the Veteran's symptomatology met the criteria for a 30 percent evaluation, i.e., his disability was productive of marked impairment. Moreover, a VA examination conducted in June 2010 reflected the opinion that work was no longer feasible for the Veteran due to his right ankle disorder as he had no motion and was unable to squat and work on a car. The examiner reviewed the entire claims file, including VA and private treatment records. It was noted that the Veteran had right ankle fusion in November 2009. The Veteran was examined and right ankle fusion was diagnosed. The Veteran was again examined by VA in November 2010. The claims file was reviewed. The examiner opined that it was at least as likely as not that the right lower (extremity) condition rendered the Veteran unemployable. The rationale was that it is a matter of record that the Veteran injured his right ankle in service including a liigamentous tear and a fracture of the medial malleoulus. It was noted that over the years the Veteran suffered a painful unstable joint, which was fused in 2009. The examiner stated that the Veteran still has tenderness with added joint pain after standing for 15 minutes or walking a few blocks. The examiner also indicated that the Veteran is unable to squat or extract himself from underneath a vehicle which would be required of an auto body repairman. He reported that with his limited education and age, it would be unlikely that he could find sedentary work and that therefore, his service-connected right lower (extremity) disorder is at least as likely as not to render him unemployable. In light of the above noted VA opinions regarding unemployability due to the right ankle disorder, this is clearly an exceptional case in which the TDIU issue should be considered on an extraschedular basis. However, the Board may not assign an extraschedular rating in the first instance, as the authority for doing so is vested in the Director of the Compensation and Pension Service. See 38 C.F.R. § 4.16(b) (2011); see also Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96 (Aug. 16, 1996). Accordingly, the Board remanded the matter of entitlement to TDIU under an extraschedular basis to the RO for referral to the Under Secretary for Benefits, Director of Compensation and Pension Service, or other appropriate designee for extraschedular consideration. In October 2012, the Director, Compensation Service, provided its determination. The file was reviewed and the Veteran's medical history was documented. It was noted that review of the evidence in its entirety did not support a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected right ankle disorder and that entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) was not established. No rationale was explicitly stated for the October 2012 finding. The finding concentrated on the VA examinations and indication that there was no diminished ankle strength or evidence of atrophy found in November 2010. It was concluded that the VA examiners' opinions were not supported by the record and therefore not probative. A medical examination report must contain not only clear conclusions, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board finds the October 2012 opinion to be less probative than the VA examiners' opinions noted above. While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, See Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. *** As is true with any piece of evidence, the credibility and weight to be attached to these opinions ... [are] within the province of the adjudicators ... Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In addition, a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. App. 444, 447, 448-449 (2000). The VA examinations in June and November 2010 were conducted with review of the VA treatment records, interview with the Veteran, and review of diagnostic tests. Both examinations were conducted by physicians. The November 2010 examiner described as "severe" the impact the right ankle condition had on his ability do chores, shopping, exercise, and recreation. The disability was found to prevent his ability to participate in sports. More importantly, the examiner further opined that the Veteran is unemployable due to his right ankle disorder, and provided rationale for the finding. The Board finds the 2010 VA examination reports to be highly probative. The VA examiners' opinions that the Veteran is unemployable due to his right ankle disorder are based on a thorough and complete review of the medical evidence, and examination of the Veteran. The findings are supported by testimony and lay statements provided by the Veteran. In June 2008, a letter from his brother notes that the Veteran's business suffered due to his right ankle. His wife stated that the Veteran was unable to work due to ankle pain. Friends of the Veteran stated that he had worked on their cars and that the Veteran could not maneuver for parts replacement as he once did. Another customer reported that the Veteran's ability to physically conduct his body shop had diminished. The Board must take into account the Veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. The Board notes that the Veteran has done the same type of work all of his life which is auto body repair and that he only has a high school education. Based upon a review of all of the evidence, and for reasons articulated above, the Board finds the evidence demonstrates that the Veteran's service connected right ankle disorder is of such severity as to preclude his participation in all forms of substantially gainful employment for which he is qualified. Entitlement to a TDIU on an extraschedular basis is warranted. ORDER A total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is granted. ____________________________________________ LILA J. BAKKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs