Citation Nr: 1313401 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 05-03 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 19, 2008 to July 17, 2008. 2. Entitlement to a TDIU prior to February 19, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and L.S. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2009, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The issue of entitlement to a TDIU was certified to the Board and noted by the VLJ at the hearing. However, because the Veteran has been in receipt of a 100 percent schedular rating and special monthly compensation for having separate disabilities rated at 60 percent since July 17, 2008, there is no basis for a TDIU subsequent to that date. 38 C.F.R. § 4.16(a) (2012); Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the issue for consideration was previously framed as whether entitlement to a TDIU was warranted prior to July 17, 2008. Here, the Board has re-characterized the issues as shown on the title page to better reflect the evidence. The issue of entitlement to a TDIU prior to February 19, 2008 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from February 19, 2008 to July 17, 2008. CONCLUSION OF LAW The criteria for a TDIU have been met from February 19, 2008 to July 17, 2008. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to a TDIU from February 19, 2008 to July 17, 2008, which constitutes a complete grant of the Veteran's claim during this period. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to the issue decided herein. Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. 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 intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the veteran to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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); see also 38 C.F.R. §§ 3.340, 3.341. 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. 38 C.F.R. § 4.16(a). The Veteran's combined schedular rating for his service-connected disabilities was 40 percent as of January 31, 2002, 50 percent from March 23, 2006, and 60 percent as of October 29, 2007, with no single disability rated as 60 percent disabling. As such, the minimum schedular criteria for a TDIU were not met on those dates. From February 19, 2008, the Veteran's combined schedular rating was 70 percent and his service-connected diabetes mellitus, with erectile dysfunction, onychomycosis of the bilateral great toe nails, and history of nephropathy with hypertension and retinopathy, was rated as 40 percent disabling. Thus, the minimum schedular criteria for a TDIU were met on February 19, 2008, and the question is whether the Veteran's service-connected disabilities alone were of sufficient severity to produce unemployability from February 19, 2008 to July 17, 2008. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). At the June 2009 Board hearing, the Veteran testified that he had last worked as a class A truck driver in 1982. The Veteran asserted that no one would hire him because of his service-connected diabetes mellitus, which made it unsafe for him to be driving on the road. He also reported that he could not pass the Department of Transportation's physical because of the various medications prescribed for his service-connected disabilities. The Veteran underwent VA examination in connection with his claim in November 2010. The VA examiner opined that since 2002, the Veteran had been unable to function in his normal occupational environment of long-distance truck driving as the result of his diabetes mellitus. The VA examiner recorded the Veteran's statements that he began having diabetic neuropathy symptoms at that time that made it difficult to feel the brake and gas pedals, as well as tingling and numbness in the fingers that made it unsafe to hold the steering wheel. The VA examiner also found that when insulin was added to the Veteran's diabetes mellitus treatment in 2006, he would have been automatically disqualified from trucking. The VA examiner noted that the Veteran had no other job experience and that his only formal education was a GED. The VA examiner opined that the Veteran would not be able to obtain or retain employment at the present time based on his service-connected disabilities, his educational background, and his occupational experience considering the side-effects from his medications. In October 2012, the Board remanded the Veteran's claim for an addendum opinion with respect to whether the Veteran was unable to secure and maintain gainful employment specifically prior to July 17, 2008. Accordingly, the Veteran's claims file was forwarded to a VA examiner in February 2013. The VA examiner opined that based on a review of the Veteran's medical records, previous VA examination reports, and clinical experience and expertise, the Veteran became unemployable as a truck driver in 2006 when he was not able to obtain his commercial driver's license as the result of his insulin-dependent diabetes mellitus. The VA examiner found that although the Veteran could still function and had the ability to secure and maintain very limited sedentary employment, he would have been limited to the point of being functionally unemployable due to his diabetic peripheral neuropathy. As such, the VA examiner opined that the Veteran became unemployable for VA purposes in 2006. In this case, the schedular criteria for a TDIU were met on February 19, 2008. In addition, the February 2013 VA examiner opined that the Veteran became unemployable for VA purposes in 2006. Therefore, resolving the benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation beginning February 19, 2008. Accordingly, a TDIU is warranted from February 19, 2008 to July 17, 2008. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU from February 19, 2008 to July 17, 2008 is granted. REMAND As demonstrated above, the minimum schedular criteria for a TDIU were not met prior to February 19, 2008. 38 C.F.R. § 4.16(a). However, 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). Rating boards are required to submit to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Based upon the February 2013 VA examiner's opinion, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU prior to February 19, 2008 on an extraschedular basis. Therefore, remand is warranted. Accordingly, the case is REMANDED for the following actions: 1. Refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted prior to February 19, 2008. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. After completing this and any other development deemed necessary, re-adjudicate the issue of entitlement to a TDIU prior to February 19, 2008. If the benefit sought remains denied, provide an additional Supplemental Statement of the Case to the Veteran and his representative, and return the appeal to the Board for appellate review after the Veteran has had an adequate opportunity to respond. The Veteran 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs