Citation Nr: 1310014 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-08 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an extraschedular rating in excess of 30 percent for bronchial asthma for the period prior to October 25, 2006, and in excess of 60 percent on and after October 25, 2006. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) for the periods prior to October 25, 2006, and on and after October 25, 2006. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to January 1993. By its decision of January 16, 2011, the Board of Veterans' Appeals (Board) denied entitlement of the Veteran to a rating in excess of 30 percent for bronchial asthma prior to October 25, 2006, but granted a 60 percent evaluation, but none higher, therefor as of October 25, 2006. In addition, the Board denied TDIU entitlement. A motion for Board reconsideration was denied in April 2011. An appeal followed to the U.S. Court of Appeals for Veterans Claims (Court) and the Court by its memorandum decision of August 2012 vacated the Board's decision except as to the assignment of schedular evaluations for asthma prior to October 25, 2006, and on and after that date, and remanded the remaining issues to the Board for additional consideration. Notice is taken that 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). The Board herein assigns a TDIU for the period on and after October 25, 2006. The issues of the Veteran's entitlement to a TDIU prior to October 25, 2006, and the issues involving his entitlement to extraschedular evaluations for asthma prior to and on and after October 25, 2006, are REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include asthma, maxillary sinusitis, allergic sinusitis with a deviated nasal septum, shin splints of each leg, and epididymitis, for which a combined disability evaluation of 70 percent was in effect from October 25, 2006, and 80 percent from January 3, 2012. 2. The Veteran has a high school equivalency diploma and is seeking an Associate's degree in hospitality management, with full-time gainful employment by him reportedly ceasing in 2000. 3. The Veteran's service-connected disabilities, alone, preclude him from engaging and retaining substantially gainful employment, consistent with his education and work history, for the period on and after October 25, 2006. CONCLUSION OF LAW The criteria for the assignment of a TDIU for the period on and after October 25, 2006, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In the instant decision the Board does not deny any benefit sought. Hence, even if there were a defect in notice or some failure on the part of VA to assist the Veteran, he has not been prejudiced by such failure at this time. There is therefore no need to provide discussion as to whether VA has met its obligations in this regard. For the same reason, the need to discuss whether there has been substantial compliance with the terms of prior Board remands is obviated. See Stegall v. West, 12 Vet. App. 268, 270-71 (1998). In this appeal, the Veteran argues that he is entitled to a TDIU, citing the severity of his multiple service-connected disabilities and their functional limitations as they existed on and after October 25, 2006. The Board concurs. Total disability ratings 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 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. 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(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term, unemployability, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of the veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In the matter at hand, service connection has been established for various disabilities, including asthma (60 percent disabling from October 25, 2006), maxillary sinusitis, allergic sinusitis with deviated nasal septum, shin splints of each leg, and epididymitis. These disabilities were evaluated in combination as 70 percent disabling from October 25, 2006, and 80 percent disabling from January 3, 2012. Hence, as of October 25, 2006, and thereafter, the schedular requirements of 38 C.F.R. § 4.16(a) are met. The question thus presented by this appeal is whether the Veteran in connection with his TDIU claim of February 2005 is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. And, as indicated above, the Board so finds. Information now of record is to the effect that the Veteran has a high school equivalency diploma and prior work experience as a groceryman, as well as a steel and factory worker, with all full-time employment reportedly ceasing in 2000. The fact that the Veteran's service-connected disabilities have been evaluated in combination as 70 to 80 percent disabling throughout the period from October 25, 2006, to the present signifies recognition by VA that there is present resulting disability and a corresponding industrial impairment. See 38 C.F.R. § 4.1. Such ratings, however, are not dispositive of the question of whether service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "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). In Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), the following was noted: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. 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. Persuasive evidence of the Veteran's unemployability due to service-connected disablement is found in record, most notably of which is the conclusion reached by a VA examiner in November 2010 to the effect that the Veteran's asthma by itself limited the Veteran to not more than sedentary employment. Great significance is attributed to that opinion, which is not otherwise contradicted by other evidence of record. Moreover, the Veteran's employability is further comprised by several other disabilities including allergic rhinitis, deviated nasal septum, sinusitis, and shin splints, albeit noncompensably disabling, affecting each of his lower extremities. These additional disabilities are indicated to limit further the degree to which the Veteran is able to obtain and maintain even sedentary employment and this is bolstered by the evidence of record indicating, among other things, the existence of a serious employment handicap as of 2009 caused by service-connected disabilities. The Board is of the opinion that the Veteran's prior work experience as a grocery man, and as a steel and factory worker are not consistent with sedentary employment. Based thereon, and in view of the Veteran's limited educational background and vocational experience, it is concluded that he is rendered unemployable based solely on multiple service-connected disabilities for the period on and after October 25, 2006. To that extent alone, the benefit sought is granted. ORDER A TDIU is granted for the period on and after October 25, 2006, subject to those provisions governing the payment of monetary benefits. REMAND Based on the Court's determination, only the issues of extraschedular entitlement for a rating increase for bronchial asthma, and for TDIU entitlement prior to October 25, 2006, remain pending, which are inexplicably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The basis of the Court's action was that the Board in its January 2011 decision failed to provide adequate reasons and bases for his conclusion that no extraschedular rating was for assignment for bronchial asthma, noting specifically that the Board's analysis under its prior holding in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), failed to consider fully the Veteran's need to be free from irritants found in public places. In addition, inadequate reasons and bases were found to have been provided for the Board's denial of TDIU entitlement in the absence of any meaningful discussion of the Veteran's pursuit of a VA program of vocational rehabilitation training with a serious employment handicap, as determined by VA. Further evidentiary and procedural development as to the appellate issues is deemed warranted. The issues raised by the Court warrant additional medical input in the form of further VA examinations and medical opinions as to the salient questions presented, including employability and the inclusivity of the schedular criteria in evaluation all of the manifestations and symptoms attributable to the Veteran's asthma. There is also a need for the agency of original jurisdiction, i.e., the RO or AMC, to consider whether a referral is needed to the appropriate VA official for purposes of determining whether any extraschedular entitlement exists either as to the Veteran's asthma and/or TDIU entitlement, particularly as to the latter for the period prior to October 5, 2006. Since this case was last adjudicated by the AMC in November 2010, much additional evidence has been added to the record, which has not been considered by the RO/AMC in connection with the issues now on appeal. That evidence includes reports of VA medical examinations in May and July 2012, as well as a variety of VA treatment records added in May 2012 to the virtual VA file for the period from August 2009 to March 2012. As well, the record also includes the Board's decision in January 2011 increasing the rating for asthma to 60 percent from October 2006 and the RO's implementation thereof by way of its rating decision of February 2011. Also on file is a rating decision of the RO in August 2012 in which the evaluation assigned for residuals of a deviated nasal septum was increased from 10 to 30 percent and previously assigned ratings for shin splints affecting each leg were confirmed and continued. Remand to permit the RO/AMC to consider initially the foregoing with respect to the matters herein on appeal is required. Accordingly, this portion of the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain for association with the Veteran's actual VA claims folder his VA vocational rehabilitation file, Chapter 31 training folder, and all counseling subfolders reflecting all pertinent actions through the present. 2. Obtain for inclusion in the Veteran virtual VA folder all pertinent VA treatment records, not already on file. 3. Afford the Veteran a VA respiratory examination for the purpose of determining his entitlement to an extraschedular evaluation of increased disability for his asthma. Request that the VA examiner review the claims file and note whether in fact the claims folder was provided and reviewed. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. The VA examiner is asked to furnish a professional opinion with complete, supporting rationale as to the following: a) Do the rating criteria for asthma set forth in 38 C.F.R. § 4.97, Diagnostic Code 6602, fully address the Veteran's manifestations and symptomatology as they existed from April 1, 2005, to the present, including but not limited to his need for isolation from irritants found in public places, and if not, where and how are they inadequate? Diagnostic Code 6602 provides for a 30 percent evaluation when pulmonary function tests reveal a forced expiratory volume at one second (FEV-1) of 56 to 70 percent predicted, or a ratio of FEV-1 to forced vital capacity(FVC) of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent evaluation is warranted when the FEV-1 is 40 to 55 percent predicted, or the FEV-1/FVC ratio is 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids is required. A 100 percent rating is warranted if the FEV-1 is less than 40 percent predicted, the FEV-1/FVC is less than 40 percent, or there is more than one attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications is required. b) Is it at least as likely as not that the Veteran's service-connected asthma has markedly interfered with his ability to obtain and maintain gainful employment for any period of time from April 1, 2005, to the present, and, if so, for what specific period(s)? The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of certain point as to find against that point. More likely and as likely support the claim; less likely weighs against the claim. 4. Obtain a VA medical examination of the Veteran in order to ascertain his entitlement to a TDIU for the period from April 1, 2005, to October 24, 2006. His VA claims folder should be made available to the VA examiner in conjunction with the examination. That examination should entail a complete medical history, clinical examination, and all pertinent diagnostic testing. All pertinent diagnoses should be set forth. The examiner is also asked to furnish an opinion, with a complete supporting rationale, as to the following: Is it at least as likely as not that the Veteran's service-connected disabilities, alone, precluded him from obtaining and maintaining substantially gainful employment, based on his educational and occupational background for the period from April 1, 2005, to October 24, 2006? When providing the opinion the examiner should not consider the Veteran's nonservice-connected disabilities or his age. The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of unemployability as to find against unemployability. More likely and as likely support unemployability; less likely weighs against the claim. 5. Refer the question of extraschedular entitlement for bronchial asthma for the period prior to and on and after October 25, 2006, and for a TDIU for the period from April 1, 2005, to October 24, 2006, for consideration by the VA's Under Secretary for Benefits or the Director, Compensation and Pension Service. 6. Lastly, readjudicate the remaining issues on appeal on the basis of all the evidence of record, to include specifically all of the evidence and actions added to the record since issuance of the most recent supplemental statement of the case in November 2010. If the decision is adverse to the Veteran in any way, he and his representative should be issued a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. No action by the Veteran is required until he receives further notice. The Veteran 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). ______________________________________________ MICHAEL D. MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs