Citation Nr: 1307301 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-24 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on both a schedular basis under 38 C.F.R. § 4.16(a), and an extraschedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from March 1968 until March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied entitlement to TDIU. In the August 2008 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a travel Board hearing. In November 2010, he elected to withdraw the Board hearing request. By way of a November 2011 Decision and Remand, the Board denied the claim for TDIU on a schedular basis pursuant to 38 C.F.R. § 4.16(a), and remanded the TDIU claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Veteran appealed the 38 C.F.R. § 4.16(a) basis denial to the United States Court of Appeals for Veterans Claims (Court), and the Court in September 2012 approved a Joint Motion for Partial Remand (Joint Motion) vacating the Board's November 2011 denial of the TDIU claim on a schedular basis pursuant to 38 C.F.R. § 4.16(a), and remanding the claim for development consistent with the Joint Motion. The Board has herein recharacterized the matter as involving a single issue, the claim for TDIU on both schedular and extraschedular bases. Doing so is in the interest of judicial efficiency, particularly since the Court approved the Joint Motion finding that the bases of the claim were inextricably intertwined. Because 38 C.F.R. § 4.16(a) and 38 C.F.R. § 4.16(b) are two bases of entitlement to the same TDIU benefit, and because they are in this case ordered by the Court not to be decided separately, their consideration together is appropriate. 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 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). 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) . This is known in the parlance of VA adjudication as the 'schedular basis' for TDIU. Where the Veteran's combined ratings fail to meet these service-connected-disabilities schedular rating requirements for 38 C.F.R. § 4.16(a), his claim for a total rating may be considered on an 'extra-schedular basis' under 38 C.F.R. § 4.16(b). Pursuant to 38 C.F.R. § 4.16(b), a total disability rating for compensation may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). To establish a total disability rating based on individual unemployability on the regular basis, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). In reaching such a determination, the central 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 high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). To consider the Veteran's own particularized circumstances in the TDIU adjudication, factors to be considered are the Veteran's education, employment history and vocational attainment (without consideration of his advanced age or of the effects of non-service-connected disabilities). 38 C.F.R. §§ 3.341, 4.16, 4.19; see Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). As noted in the Introduction, above, the Board by its November 2011 decision and remand denied the TDIU claim on a schedular basis pursuant to 38 C.F.R. §4.16(a), and remanded the TDIU claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). At the time of the Board's November 2011 decision the Veteran was service-connected for all of the following disabilities: amputation of a portion of the left great toe, evaluated as 30 percent disabling; amputation of a portion of the left second toe, evaluated as 20 percent disabling; deformity of the left foot, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and a fragment wound of the right leg and left ear hearing loss, each evaluated as noncompensably (0 percent) disabling. A combined 60 percent disability rating was noted to have been in effect from June 2008. (VA arrives at this combined rating by application of the combined rating table, as contained within 38 C.F.R. § 4.25, a process which iteratively combines percentages of impairment, beginning with the most disabling disability or sets of disabilities. The regulation itself should be consulted for further details of this process.) Thus, the assigned service-connected disability ratings as they existed at the time of the November 2011 Board decision failed to meet the schedular standards for TDIU under 38 C.F.R. § 4.16(a). However, the Joint Motion approved by the Court in its September 2012 Order vacated that decision, based on the understanding agreed upon by the parties to the Joint Motion, that the schedular and extraschedular bases of claim were inextricably intertwined. It was indicated that the evidentiary development underlying the Board's eventual determination of the claim under 38 C.F.R. § 4.16(b) could potentially impact a schedular rating determination and thus qualify the Veteran for a favorable determination under 38 C.F.R. § 4.16(a). The Joint Motion cited Gurley v. Nicholson, 20 Vet. App. 573 (2007), for the proposition that claims may be remanded to be adjudicated with other claims. The extraschedular 38 C.F.R. § 4.16(b) claim remanded to the Appeals Management Center (AMC) pursuant to the Board's November 2011 remand was afforded AMC development, followed by the AMC's issuance of a supplemental statement of the case (SSOC) in September 2012. The development consisted of providing the Veteran a notice and development letter in November 2011, and providing him VA examinations in August 2012 addressing his service-connected tinnitus, left foot disability, and right leg disability. By the September 2012 SSOC the AMC address the Veteran's TDIU claim on both a schedular basis pursuant to 38 C.F.R. § 4.16(a), and an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board's November 2011 remand required the RO or AMC to consider whether referral for consideration of the TDIU claim by the Director, Compensation and Pension Service, was appropriate. The RO did not refer the case to the Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Rather, following August 2012 examination development, the AMC by the September 2012 SSOC concluded that referral to the Director was not warranted. The AMC found that the evidence did not show that the Veteran was unemployable due to service-connected disabilities. The August 2012 VA examiner addressing the service-connected left foot and right leg disabilities addressed the question of unemployability due to service-connected lower extremity disabilities. The examiner noted that the Veteran had worked for 34 years as a mail carrier for the Post Office prior to retiring in 2008. The Veteran reported that his Postal work had required walking and standing most of the time, and asserted that he had retired because he could no longer tolerate work activities requiring prolonged standing, walking, lifting, and carrying due to his chronic left lower leg pain. The August 2012 VA examiner addressing the left foot and right leg concluded that the Veteran's service-connected left great toe and second toe amputations and left foot deformity with associated chronic pain precluded the Veteran from engaging in substantial physical employment. However, the examiner concluded that these conditions did not preclude "minimal sedentary employment." Unfortunately, this August 2012 opinion is inadequate. "Minimal sedentary employment" is not the appropriate standard. Rather, a VA examiner for TDIU purposes must answer whether it is at least as likely as not that the Veteran is precluded by service-connected disabilities from obtaining or retaining substantially gainful employment in a non-sheltered work environment. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.16 (2012). Thus, remand is required for a further examination addressing the correct standard. Additionally, the Board by its November 2011 Remand had required the RO/AMC to make inquiry to ascertain whether the Veteran had filed for Social Security Administration (SSA) benefits. The record reflects that the AMC by its development letter to the Veteran in November 2011 had asked the Veteran to indicate whether he had filed a claim for SSA benefits. The Veteran did not reply to this request. The Board finds such development insufficient, and hence not in substantial compliance with the Board's remand for purposes of the present claim. (Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008).) In light of the Veteran's failure to reply, appropriate inquiry should be directed to the SSA. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his TDIU claim. 2. With the Veteran's authorization and assistance, as appropriate, obtain any additional VA and private treatment and examination records not yet associated with the claims file. 3. The RO/AMC should obtain and associate with the claims file any Social Security disability determination(s) and the medical records underlying the determination(s). 4. Thereafter, the Veteran should be afforded a VA examination to address the impact of all the Veteran's service-connected disabilities, taken as a whole, on his capacity for substantially gainful employment. A list of current service-connected disabilities should be provided to the examiner. The claims folders including a copy of this Remand must be made available to the examiner for review for the examination. Any additional indicated tests and studies should be conducted to the extent necessary to address questions of employment impairments due to service-connected disabilities. The examiner should provide an explanation with supportive reasoning and factual bases for his or her diagnoses, assessments, and opinions. The examination report and opinions provided should be informed by review of all the evidence, including past treatment and examination records and lay evidence. In that regard, the examiner is hereby advised that the Veteran's statements about current and past disabilities, symptoms, and work capacity should be accepted as supporting the extent of disability present and impact on capacity for employment, to the extent such statements are found to be credible. The examiner should state and explain any determinations he or she makes regarding the credibility of the Veteran's assertions. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The examiner is hereby advised that marginal employment that is of limited remuneration or that is in a sheltered environment, protected from demands of employment in the general marketplace (such as a special position within a family business sheltered from productive requirements of general employment), is not to be considered substantially gainful employment. Substantially gainful employment is to be considered employment that is available within the employment market that would provide sufficient remuneration to allow the Veteran to support himself financially on the income derived from that employment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, taken as a whole and without consideration of non-service-connected disabilities, prevent the Veteran from obtaining or retaining substantially gainful employment. In making this determination, the examiner should consider the Veteran's work experience and training, but not his age. The examiner should provide an explanation for all conclusions drawn and opinions expressed. 5. Thereafter, following other indicated development, readjudicate the remanded claim for TDIU de novo. Referral to the Direct, Compensation and Pension Service, must be considered if the schedular disability ratings requirements under 38 C.F.R. § 4.16(a) are not met. If the TDIU benefit is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).