Citation Nr: 1304097 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 06-06 947A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total rating based upon individual unemployability by reason of service-connected disability (TDIU), on an extraschedular basis, under the provisions of 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision, issued in December 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case was then remanded by the Board in November 2008, August 2010 and July 2011, for further development of the record. The post-remand record shows substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for superior oblique palsy of the left eye, with right lateral rectus palsy of the right eye, resulting in the constant vertical and horizontal diplopia in the primary gaze associated with Type II diabetes mellitus, rated as 30 percent disabling; Type II diabetes mellitus, rated as 20 percent disabling; and an appendectomy scar, rated as noncompensable. 2. The combined service-connected disability rating is 40 percent (under the combined rating table), effective from March 10, 2004. As such, the Veteran does not meet the percentage criteria for schedular a TDIU evaluation. 3. The competent and probative evidence of record establishes that the Veteran's service-connected eye disability has been of such severity as to preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience, without regard to nonservice-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(b), 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits it has jurisdiction to decide at this time. 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. The Merits of the Claim A TDIU is a rating, not a disability. It merely means that a veteran has met certain qualifications entitling him to a total disability rating. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. The Veteran is currently in receipt of service connection for three disabilities: superior oblique palsy of the left eye, with right lateral rectus palsy of the right eye, resulting in the constant vertical and horizontal diplopia in the primary gaze associated with Type II diabetes mellitus, rated as 30 percent disabling; Type II diabetes mellitus, rated as 20 percent disabling; and an appendectomy scar, rated as noncompensable. The combined service-connected disability rating is 40 percent (under the combined rating table), effective from March 10, 2004. As such, the Veteran does not meet the percentage criteria for schedular a TDIU evaluation. Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability, for purposes of a possible extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board emphasizes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed under 38 C.F.R. § 4.16(b). The Board itself cannot assign an extraschedular rating in the first instance. See Thun v. Shinseki, 572 F.3d 1366 (2009). Although Thun only dealt with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). That is, since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See also Floyd v. Brown, 9 Vet. App. at 96-97 (1996) (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the Board."). Where, as in this case, a Veteran fails to meet the applicable percentage standards, an extraschedular rating is for consideration where the Veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3 (2012). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." 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 a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In a VA Form 21-4138, Statement in Support of Claim, dated in March 2005, the Veteran indicated that he had not worked since December 2004 due to his eye disability. The evidence of record is mixed with respect to the issue of entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b). A VA Form 27-1837a, Decision on Application for Waiver of Indebtedness Other than Loan Guaranty, reveals that the Veteran was certified as attending the Chicago Technical College on a half time basis commencing in September 1970 and terminating in June 1971. He discontinued his attendance in December 1970. A June 1987 private treatment record indicates that the Veteran was a construction worker, and that his job involved moving heavy metal rods, roughly 120 pounds, and carrying them on skyscrapers over narrow paths. Private outpatient records dated between 1988 and 1997 continue to reflect the Veteran's employment in construction work. On VA diabetes and scars examination, dated in May 2003, the examiner noted that the Veteran was employed as an ironworker. In March 2004 the Veteran submitted a statement, which indicated that he experienced a right eye problem related to his service-connected Type II diabetes mellitus that could have cost him his job as an ironworker. In a December 2004 statement, the Veteran indicated that he was working but was limited with what tasks he could perform. He specifically identified being unable to do sheeting, decking, or structural work. He worried that he could be severely injured or killed on the job if he performed these tasks. He noted that he could not see straight ahead and described falling "a lot." In July 2007, the Veteran's private physician, "Dr. Bertram Kraft," submitted a statement in which it was noted that the Veteran's "6th Cranial Nerve Palsy" leaving him with double vision in his primary gaze, combined with his optic nerve atrophy, has caused him to experience difficulty with his daily activities. The physician opined that the Veteran should be considered for disability benefits. A June 2009 VA diabetes mellitus examination report reflects an opinion that the Veteran's service-connected Type II diabetes mellitus does not cause activity restriction, and does not have an effect on the Veteran's occupational functioning and daily activities. Conversely, a VA eye examination of the same date indicates a diagnosis of mild residual left superior oblique palsy with mild left hypertropia resulting in vertical diplopia at distance and near. The optometrist observed that the diplopia was not 100 percent correctable by spectacles or prism due to the limited muscle function of the right and left eyes, although there might have been some lessening of symptoms with prism spectacles but not complete resolution. The optometrist opined that, based on the fact that the Veteran was experiencing constant binocular diplopia in central and lateral gazes as a result of two separate muscle palsies related to his diabetes, it was within reason that he would be unable to perform the work-related tasks of an ironworker, his former trade, as it would bode dangerous to both the Veteran and other workers. Most recently, a VA medical opinion regarding the Veteran's ability to hold gainful employment was provided in August 2011, based on the examination findings of the June 2009 examination. Here, the same optometrist who performed the June 2009 VA eye examination reviewed the claims file and noted diagnoses of mild residual left superior oblique palsy with mild left hypertropia resulting in vertical diplopia at distance and near, and of right lateral rectus (cranial nerve 6) palsy with residual right esotropia at distance and near and subsequent horizontal diplopia. The optometrist indicated that the assessment given at the time of the June 2009 examination still held true, and that the Veteran's diplopia was not 100 percent correctable by spectacles or prism due to the limited muscle function of the right and left eyes. There might have been some lessening of symptoms with prism spectacles but not complete resolution. The optometrist again opined that, based on the fact that the Veteran was experiencing constant binocular diplopia in central and lateral gazes as a result of two separate muscle palsies related to his diabetes, it was within reason that he would be unable to perform the work-related tasks of an ironworker, which was his former trade. The optometrist observed that this would bode dangerous to both the Veteran and other workers. The optometrist concluded that any work that consisted of seeing fine detail and relying on visual acuity and the use of the eyes for long periods of time would be nearly impossible. The optometrist's probative medical opinions, in particular, provide strong evidence in support of an extraschedular rating under 38 C.F.R. § 4.16(b). In August 2012 the Veterans Benefits Administration (VBA) produced a memorandum entitled "Extra-Schedular Total Disability Evaluation under 38 C.F.R. § 4.16(b)," which included an assessment of the Veteran's claim for TDIU on an extraschedular basis. The Director of C&P (Director) summarized the pertinent evidence of record and noted that the Veteran's service-connected disabilities did not meet the requirements for a total rating under 38 C.F.R. § 4.16(a), and determined that, upon review of the evidence in its entirety, it was not established that the Veteran was unemployed and unemployable due to his service-connected disabilities. The Director concluded that entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) was not established. Overall, the positive evidence outweighs the negative evidence in support of an extraschedular TDIU. The Board emphasizes that entitlement to an extraschedular rating under 4.16(b) requires that the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). In this regard, the Board must consider the Veteran's employment history, which was concentrated in physical labor, or his education, which appears to have limited to vocational training in keeping with his former employment as an ironworker. The Board finds that the evidence of record demonstrates that the Veteran could not even work in a sedentary job, based on his past education, training, and previous job experience, as well as his current physical restrictions due to his eyesight. See 38 C.F.R. § 4.16(b). The VA optometrist not only concluded that the Veteran's would be unable to perform the work-related tasks of his former profession, but that it would be dangerous to do so, and that any work that consisted of seeing fine detail and relying on visual acuity and the use of the eyes for long periods of time would be nearly impossible. In addition, even without consideration of the effect of the Veteran's nonservice-connected heart condition, vestibular disorder, skin color changes and high blood pressure, the evidence of record clearly shows the Veteran's service-connected eye disability, standing alone, prevents him from securing gainful employment. 38 C.F.R. §§ 3.341(a), 4.16(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board is satisfied that the Veteran's service-connected eye disability prevents him from securing or following substantially gainful employment, despite his failure to meet the percentage requirements for TDIU. 38 C.F.R. § 4.16. Accordingly, the Board finds that the evidence supports a finding of TDIU on an extraschedular basis. 38 C.F.R. § 4.3. The appeal is granted. ORDER A TDIU is granted on an extraschedular basis, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs