Citation Nr: 1310348 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 06-18 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 5, 2012. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, ABS Legal Advocates, P.A. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970 and from July 1977 to May 1980. This case comes before the Board of Veterans' Appeals (Board) from a November 2011 Board remand. In that remand, the Board considered four increased ratings claims relating to rating decisions of July 2005 and August 2007. Based on Rice v. Shinseki, the Board inferred the issue of entitlement to a TDIU and considered it along with the Veteran's other claims. 22 Vet. App. 447 (2009) (holding that a TDIU claim is part of an increased rating claim when it is raised by the record). The Board issued decisions with respect to the increased rating claims, but remanded the claim for a TDIU for further development. In the course of that development, the Veteran underwent VA examinations pertinent to each of his service-connected disabilities. In an October 2012 rating decision, the RO increased the Veteran's rating for his service-connected posttraumatic stress disorder (PTSD) to 100 percent effective March 5, 2012. While this grant renders the issue of entitlement to a TDIU moot from that effective date forward, the issue of entitlement to a TDIU prior to that date remains on appeal. The issue of entitlement to a TDIU prior to March 12, 2010 is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran is currently service-connected for five disabilities: PTSD, a right foot disability, a low back strain, tinnitus, and bilateral hearing loss; he had a combined disability rating of at least 70 percent since March 12, 2010. 2. Since March 12, 2010, the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU for the period from March 12, 2010 to March 5, 2012 have been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, on the matter being decided herein, the Board is granting the Veteran's claim. As the Board is taking an action favorable to the Veteran, there can be no possibility of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). An extensive discussion of the duties to notify and assist is thus unnecessary. II. Entitlement to a TDIU A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. It is further provided that the existence or degree of nonservice-connected or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency, such service-connected disabilities render the Veteran unemployable. Marginal employment - defined as when a Veteran's earned annual income does not exceed the poverty threshold for one person - shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The Veteran is currently service-connected for five disabilities: PTSD, rated as 50 percent disabling prior to March 5, 2012 and as 100 percent disabling thereafter; a right foot disability, rated as 10 percent disabling prior to March 12, 2010 and as 20 percent disabling thereafter; a low back strain, rated as 10 percent disabling prior to January 20, 2011 and as 20 percent disabling thereafter; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. As the Veteran is service-connected for multiple disabilities, he must have a combined disability of 70 percent or more to meet the schedular criteria for a TDIU. As of March 12, 2010 (the effective date for his 20 percent rating for a right foot disability), the Veteran meets this threshold. The evidence also shows that, for the period from March 12, 2010 to March 5, 2012, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. Of primary importance are the Veteran's PTSD symptoms and the effect they have on his occupational outlook. An August 2010 VA mental health record reflects that the Veteran was assigned a GAF score of 40, indicating some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed person avoids friends, neglects family, and is unable to work). A February 2011 VA examination noted that the Veteran has a tendency to get into disputes with his neighbors, and that he had previously had protective orders sought against him. The examiner noted that the Veteran "appear[s] to be someone who is likely to develop problems getting along with others, with a tendency for resentments to accumulate over time." The examiner noted that when the Veteran was working, he got into conflicts with his coworkers. Notably, these symptoms mirror those found in the March 2012 VA PTSD examination that formed the basis for his current 100 percent rating. When the Veteran's psychiatric symptomatology is considered alongside his service-connected physical disabilities, the Board concludes that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In making this determination, the Board must analyze the Veteran's education and work history. See, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering claimant's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering claimant's 8th grade education and sole occupation as a farmer); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability). Considering that he previously has worked in manual labor jobs, his service-connected physical disabilities would preclude him from performing much of the work that he has previously done. Given the Veteran's PTSD symptomatology (including his problems with anger, his conflicts with coworkers, and his physical disputes with others), it is difficult to conceive of his sustaining anything more than marginal employment in any non-manual labor setting. Resolving any reasonable doubt regarding the question of the Veteran's employability in his favor, TDIU is warranted from March 12, 2010 to March 5, 2012. ORDER A total disability rating based on individual unemployability is granted for the period from March 12, 2010 to March 5, 2012, subject to the regulations governing monetary distribution of benefits. REMAND As noted above, the Veteran only met the 70 percent combined rating threshold as of March 12, 2010. Prior to that date, his combined disability rating did not meet the standard provided in 38 C.F.R. § 4.16(a). When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU rating may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, however, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As such, the claim for entitlement to a TDIU prior to March 12, 2010 must be remanded in order that the RO may submit his claim for extraschedular consideration. Accordingly, the case is REMANDED for the following actions: 1. Adjudicate the Veteran's claim for TDIU prior to March 12, 2010 by conducting any development deemed appropriate and thereafter referring the claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extraschedular TDIU consideration. 2. Thereafter, readjudicate the TDIU claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and given the opportunity to respond thereto. 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs