Citation Nr: 1313963 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 05-26 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to October 23, 2008. 2. Entitlement to a TDIU from October 23, 2008, to June 2, 2011. 3. Entitlement to a TDIU on and after June 3, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. By its decision of January 24, 2011, the Board of Veterans' Appeals (Board) denied TDIU entitlement. A motion for Board reconsideration was received in September 2011, which was subsequently withdrawn. An appeal to the U.S. Court of Appeals for Veterans Claims (Court) followed, and the parties to that appeal thereafter jointly moved the Court to vacate the Board's decision and remand the matter to the Board for further review. The Court by its May 2012 order granted the parties' motion and the case has since been returned to the Board for further review. In the interim, the RO by rating action in July 2012 granted entitlement to service connection for ischemic heart disease and assigned a 10 percent rating therefor, effective from June 3, 2011. That rating was increased to 60 percent, effective from June 3, 2011, by the RO through its rating decision of February 2013. For reasons set forth in detail below, the Board herein grants TDIU entitlement for the period from October 23, 2008, to June 2, 2011. The issues of the Veteran's TDIU entitlement prior to October 23, 2008, and on and after June 3, 2011, are addressed in the REMAND portion of the decision below and such REMAND is to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. From October 23, 2008, a combined schedular disability evaluation of 80 percent was in effect and that combined rating was increased to 90 percent as of December 4, 2008, due to service-connected disabilities of posttraumatic stress disorder (PTSD), major depressive disorder, diabetes mellitus, diabetic nephropathy and microalbuminuria with hypertension, peripheral neuropathy of each lower extremity, residuals of malaria, and erectile dysfunction. 2. The Veteran has a seventh grade education and past work experience as a boilermaker, with all full-time work reportedly ceasing in 2000. 3. From October 23, 2008, to June 2, 2011, the Veteran's service-connected disabilities, alone, rendered him unable to engage in or retain substantially gainful employment, consistent with his education and work history. CONCLUSION OF LAW The criteria for assignment of a TDIU for the period from October 23, 2008 to the June 2, 2011, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, as the Board herein grants the benefit sought for the period from October 2008 to June 2011 in its entirety, the need to discuss VA's efforts to comply with the duties to notify and assist is obviated. By this appeal, the Veteran seeks entitlement to a TDIU for the period from October 23, 2008, to June 3, 2011, inclusive, citing the severity of his multiple service-connected disabilities and their functional limitations as they existed during that time frame. 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). During the relevant time period, service connection was in effect for PTSD and major depressive disorder, evaluated as 70 percent disabling; diabetic nephropathy and microalbuminuria with hypertension, evaluated as 30 percent disabling; diabetes mellitus, type II, evaluated as 20 percent disabling; peripheral neuropathy of each lower extremity, each evaluated as 10 percent disabling; residuals of malaria, evaluated as 0 percent disabling; and erectile dysfunction, evaluated as 0 percent disabling. A combined disability evaluation of 80 percent was in effect from October 23, 2008, and that combined evaluation was raised to 90 percent for the period from December 4, 2008. Hence, as of October 23, 2008, and thereafter, the schedular requirements of 38 C.F.R. § 4.16(a) were met. The question thus presented by this appeal is whether the Veteran in connection with his TDIU claim of October 2003 is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities during the period from October 23, 2008, to June 2, 2011. And, as indicated above, the Board so finds. Information now of record is to the effect that the Veteran has a seventh grade education and prior work experience as a boilermaker, with all full-time employment reportedly ceasing in 2000. The fact that the Veteran's service-connected disabilities have been evaluated in combination as 80 to 90 percent disabling throughout the period from October 23, 2008, to June 2, 2011, signifies recognition by VA that there was then present resulting disability and a corresponding industrial impairment. See 38 C.F.R. § 4.1. (2012). Such ratings, however, are not dispositive of the question of whether service-connected disabilities precluded the Veteran from securing and following a substantially gainful occupation during the period in question. 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). Persuasive evidence of the Veteran's unemployability due to service-connected disablement is found in record, most notably from the opinion of a VA examiner in early 2010 that the Veteran was severely disabled by PTSD and major depression in terms of personal and social functioning. That opinion is bolstered by the opinion of a separate VA examiner in November 2008 to the effect that the Veteran's PTSD and major depression were productive of serious manifestations affecting interpersonal relationships, thinking, and mood, for which a Global Assessment of Functioning Scale score of 50 was assigned. Great significance is attributed to those opinions as to the adverse effects of service-connected psychiatric entities. Notice, too, is taken that another VA examiner who evaluated the Veteran in 2009 determined that the Veteran's PTSD, alone, did not render him unemployable, but necessitated work in a "loosely supervised environment should the job not be physically taxing" and who declined to opine as to the effects of other service-connected disabilities of the Veteran in combination with his psychiatric impairments. Moreover, the Veteran's employability is shown to be further comprised during the period at issue by several other disabilities including diabetes mellitus and associated disabilities of diabetic nephropathy, microalbuminuria, hypertension, peripheral neuropathy of each lower extremity, malaria, and erectile dysfunction. These additional disabilities are indicated to limit further the Veteran's ability to obtain and maintain gainful employment beyond those restrictions imposed by his PTSD and major depression. It is made clear from the evidence of record that the Veteran's prior work experience as a boilermaker is not consistent with his pursuit of sedentary employment. Based thereon, and in view of the Veteran's limited educational background and vocational experience, it is concluded that he was rendered unemployable based solely on multiple service-connected disabilities for the period from October 23, 2008, to June 2, 2011, inclusive. To that extent alone, the benefit sought on appeal is granted. ORDER A TDIU is granted for the period on and after October 23, 2008, to June 2, 2011, inclusive, subject to those provisions governing the payment of monetary benefits. REMAND Remaining for appellate consideration are the issues of the Veteran's entitlement to a TDIU for the period prior October 23, 2008, during which time his service-connected disabilities were evaluated in combination as 60 percent or less disabling, and on and after June 3, 2011, when there was a combined disability evaluation of 100 percent in effect. The basis of the parties' joint motion before the Court was that the Board had failed to consider and discuss evidence constructively of record at the time of entry of its January 2011 decision, including a rating decision of March 2010, certain VA outpatient treatment records, and the February 2010 report of a VA examination for evaluation of the Veteran's PTSD. The parties likewise determined in their joint motion that on remand the Board should consider whether an additional VA medical examination should be afforded the Veteran to assist in determining his entitlement to a TDIU. In order to comply with the Court's order, additional evidentiary and procedural development, as set forth in detail below, is deemed necessary, requiring remand of this portion of the appeal to the RO via the AMC. In addition, much additional evidence has been added to the record since the AMC last considered the appellate issues in its supplemental statement of the case in September 2009. Included are the reports of VA medical examinations or Disability Benefits Questionnaires (DBQs) identified in a rating decision of February 2013 as having been compiled or received in August and October 2012. This, too, requires remand to permit the AMC to consider this evidence before the Board enters a final decision. As well, the Board notes that the Court has recently noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any single disability or combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. at 2948) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. Id.; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) supports a TDIU rating independent of the other 100 percent disability rating). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated as 100 percent disabling. See 38 C.F.R. § 3.350(i) (2012) (requiring service-connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more, or being permanently housebound due to such service-connected disability or disabilities). Here, service connection is currently in effect for PTSD rated at 70 percent, as well as ischemic heart disease (60 percent); diabetic nephropathy with albuminuria and hypertension (30 percent); diabetes mellitus (20 percent); peripheral neuropathy of each lower extremity (each 10 percent); and residuals of malaria and erectile dysfunction (each 0 percent). In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran is eligible for a TDIU based solely on his PTSD, heart disease, diabetes, nephropathy, or other service-connected disability. If so, then while not rated as 100 percent disabling, for SMC purposes, that disability satisfies the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. at 251; Bradley, 22 Vet. App. at 293 (2008). Further evidentiary and procedural development of the Buie and Bradley questions raised by this appeal is necessitated, which requires remand of this case to the AMC. Accordingly this portion of the case is REMANDED for the following actions: 1. Afford the Veteran written notice as to his potential SMC entitlement under Buie and Bradley, to include specifically the period on and after October 3, 2011. 2. Obtain for inclusion in the claims folder all pertinent VA treatment records, not already on file, for inclusion in the Veteran's VA claims folder, including but not limited to the reports of VA medical examinations and/or DBQs identified in the rating decision of February 2013 as having been compiled or received on August 22, 2012, October 24, 2012, and October 30, 2012. 3. After completion of the foregoing, afford the Veteran a VA medical examination in order to ascertain his entitlement to a TDIU for the periods from October 22, 2002, to October 22, 2008, and on and after October 3, 2011. 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: a) Is it at least as likely as not that the Veteran's service-connected disabilities, either singly or taken together, precluded the Veteran from obtaining and maintaining substantially gainful employment, based on his educational and occupational background, for the period from October 22, 2002, to October 22, 2008, or any specific period therein? When providing the opinion the examiner should not consider the Veteran's nonservice-connected disabilities or his age. b) Is it at least as likely as not that any individual service-connected disability, by itself, precluded the Veteran from obtaining and maintaining substantially gainful employment, based on his educational and occupational background, on and after October 3, 2011? 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. 4. Thereafter, refer the question of extraschedular entitlement for a TDIU for the period from October 22, 2002, to October 22, 2008, for consideration by the VA's Director, Compensation and Pension Service. 5. Lastly, readjudicate the remaining issues on appeal on the basis of all the evidence of record, to include specifically all of the evidence added to the record and actions completed since issuance of the most recent supplemental statement of the case in September 2009, including but not limited to the rating decision of March 2010, VA treatment records through February 2010, the report of a VA examination for PTSD evaluation in February 2010, the rating decision of July 2012, the VA examination reports or DBQs of August and October 2012, and the rating decision of February 2012. Specific consideration should be accorded the holdings in Buie and Bradley as to the claim for a TDIU for each individual service-connected disability for the period on and after October 3, 2011, and any potential entitlement to SMC. 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 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs