Citation Nr: 1311247 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 08-11 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1991, including service in the Southwest Asia theater of operations during the Gulf War. The Veteran also served in the U.S. Army Reserves. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO in July 2010. A transcript of the hearing is associated with the claims file. In January 2011 and again in August 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration. This development was accomplished. In January 2013, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the claim and returned the file to the Board for further appellate review. 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 The Veteran contends her service-connected disabilities are so severe as to warrant award of a TDIU. A TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. Id. In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (CAVC/Court) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Finally, marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a), see Faust v. West, 13 Vet. App. 342 (2000). The Veteran is currently service-connected for chronic fatigue syndrome (CFS) (40 percent disability rating); sinusitis (30 percent); reactive airway disease (10 percent); hypertension (0 percent); and loss of sense of taste and smell (0 percent); and costochondritis associated with CFS (0 percent). None of these individual disability ratings, including CFS, meet the minimum schedular criteria of a 60 percent threshold for a single disability, for schedular consideration for a TDIU under § 4.16(a). Her combined disability ratings also cannot meet the schedular criteria for TDIU consideration under § 4.16(a), since her combined disability rating is only 60 percent. Nonetheless, the Board's inquiry turns to consideration of the provisions of an extraschedular grant for a TDIU, under 38 C.F.R. § 4.16(b). That is, if the Veteran fails to meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), but there is probative evidence indicating she is nonetheless unable to obtain and maintain a substantially gainful occupation because of the severity of her service-connected disabilities, her case must be referred to the Director of Compensation for consideration of possibly granting a TDIU on an extra-schedular basis. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The severity of her service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on this issue must be addressed. 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular rating in the first instance, see Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996), but it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the evidence reflects that a referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The Board determines that there is medical and other evidence of record suggesting the Veteran's service connected CFS and chronic sinusitis disabilities have precluded her from working in all forms of substantially gainful employment since approximately 2004. Review of the Veteran's records shows that during her employment as a Registered Nurse at a hospital, the Veteran's employer reprimanded her in 2003 for excessive absences, including 4 sinal-related absences. By March 2004, she had to take extended and continuous medical leave from her employment as a Registered Nurse at a hospital, under the Family and Medical Leave Act (FMLA), including due to episodic respiratory problems, acute maxillary sinusitis and headaches. In June 2004, her employer terminated her employment, as she had not been able to return to work after exhausting her medical leave. In this regard, she contends that her service-connected chronic fatigue syndrome (CFS) caused high absenteeism and prevented her functioning on her feet, thus forcing her to cease employment in 2004 as a registered nurse at a hospital. She also asserts her chronic sinusitis contributed to her unemployability in her prior occupation as a nurse. See October 2009 VA examination report and February 2011 TDIU claim (VA 21-8940). Also, a May 2008 statement from a co-worker, K.S., Registered Nurse, corroborated the Veteran's assertions that recurrent sinus infections significantly impaired her employment. The Veteran's statements in support of her claim have been consistent and credible, and the Board accords her and K.S.'s statements with some degree of probative value, since she is competent to speak on some medical matters as a registered nurse. Moreover, the Veteran was awarded Social Security Administration (SSA) disability benefits, due in part to impairment caused by her service-connected CFS and chronic sinusitis. The October 2007 SSA award decision found these conditions contribute to her inability to return to her prior nursing employment. As per a February 2010 statement and a February 2011 TDIU claim (VA 21-8940), the Veteran obtained permission from her physicians to return to work, so she could enroll in a Billing and Coding Course through VA Vocational Rehabilitation training. However, she asserts she was unable to complete her training due to exacerbations of her sinusitis and CFS. In addition, a February 2011 VA examination found her service-connected hypertension also contributed to her increased absenteeism. In light of the evidence on record, the Board determines that there are indications in the record that the Veteran's service connected disabilities have significantly interfered with her ability to maintain or obtain substantially gainful employment. The Board is compelled to remand the claim for a TDIU for referral to the Director of the Compensation and Pension Service or other designate in accordance with 38 C.F.R. § 4.16(b) for consideration of whether this benefit is warranted on an extraschedular basis. The Veteran references a prior application to VA Vocational Rehabilitation training in April 2010. Any such records should be obtained and considered on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's vocational rehabilitation folder, if such exists. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, including any VA or private clinical records that may have come into existence since the January 2013 SSOC, refer the TDIU claim to the Director of Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16(b), for consideration of whether this benefit is warranted on an extraschedular basis. 3. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send her an SSOC and give her an opportunity to respond to it before returning the file to the Board for further appellate consideration. 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). _________________________________________________ JONATHAN B. KRAMER 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).