Citation Nr: 1314232 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 05-35 499A ) 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) due to service-connected disabilities on an extra-schedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. A review of the procedural history of the Veteran's claim is instructive. This case originally came to the Board of Veterans' Appeals (Board) on appeal from August 2004 and January 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida; the original rating decision established service connection for the Veteran's right Achilles tendon disability, and the second rating decision increased his rating to 10 percent. The Veteran filed a Notice of Disagreement with his initial rating, and followed that disagreement with a timely Substantive Appeal. In July 2007, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. The Veteran also testified at an earlier hearing before RO personnel in January 2006. Transcripts of both hearings are associated with the claims folder. In October 2007, the Board considered whether the Veteran was entitled to an increased initial rating for his service-connected right Achilles tendon disability; the Board remanded that claim to the RO for further development. When the case returned to the Board in June 2010, the Board denied the Veteran's claim for an increased rating on a schedular basis, but remanded the issue of entitlement to an increased rating on an extra-schedular basis. The Board also found that the issue of entitlement to a TDIU had been raised by the record, but since the Veteran did not meet the schedular criteria for a TDIU, this claim was also remanded for extra-schedular consideration. In December 2010, the Director, Compensation and Pension Service (Director) concluded that the criteria for an extra-schedular rating for both the Veteran's Achilles tendon disability and for a TDIU had not been met. In a January 2012 decision, the Board similarly concluded that the criteria for extra-schedular ratings had not been met. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In August 2012, the Court approved a Joint Motion for Remand, returning the case to the Board. That Joint Motion noted that the parties did not wish to disturb the Board's decision denying the Veteran an extra-schedular rating for his Achilles tendon disability. With regard to the TDIU claim, the Joint Motion determined that the Board did not consider all of the Veteran's service-connected disabilities when denying the Veteran's claim for a TDIU on an extra-schedular basis. The Joint Motion thus vacated the part of the Board's decision regarding his TDIU claim and remanded it to the Board. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). FINDINGS OF FACT 1. The Veteran is service-connected for six disabilities: pain disorder, chronic insertional right Achilles tendon, left hip arthritis, right hip arthritis, tinnitus, and bilateral hearing loss. The Veteran's combined rating is 60 percent. 2. 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 on an extra-schedular basis have been met. 38 U.S.C.A. §§ 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, 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 on an Extra-schedular Basis 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is service-connected for six disabilities: pain disorder, rated as 30 percent disabling; chronic insertional right Achilles tendon, rated as 20 percent disabling; left hip arthritis, rated as 10 percent disabling; right hip arthritis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. The Veteran's combined rating is 60 percent. The Veteran does not meet the schedular criteria for a TDIU. However, 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. § 4.16(b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance, 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). The Board has already submitted the claim for such consideration; in a December 2010 determination, the Director concluded that entitlement to a TDIU on an extra-schedular basis was not warranted. Evidence obtained since that determination shows, however, that the Veteran's service-connected disabilities do render him unable to secure or follow a substantially gainful occupation. In support of his claim, the Veteran's representative submitted a January 2013 vocational assessment from P.C., Ph.D. In forming his opinion, Dr. P.C. stated that he reviewed numerous records, including VA examinations, VA treatment records, and lay statements in support of the Veteran's claim. In his assessment, Dr. P.C. considered each of the Veteran's service-connected disabilities and the effects that they have on his employment prospects. With respect to the Veteran's right Achilles tendon disability and his bilateral hip arthritis, Dr. P.C. wrote that these disabilities prevent the Veteran from walking for more than a few yards or standing for more than a few minutes, limiting his ability to perform even sedentary work. With regard to his hearing loss and tinnitus, Dr. P.C. stated that these disabilities would limit his ability to communicate with the public or coworkers. With respect to his psychiatric disorder, Dr. P.C. wrote that his condition would negatively affect his ability to concentrate, complicate interactions with coworkers and the public, and negatively impact his reliability and ability to be productive. Dr. P.C. concluded that, due to the combined severity of the Veteran's service-connected disabilities, the Veteran "has been and continues to be unable to secure and follow a substantially gainful occupation even at the sedentary level of work." Dr. P.C.'s opinion is consistent with the other evidence of record. Earlier VA examinations have acknowledged that the Veteran's orthopedic disabilities would preclude all but sedentary employment. An October 2010 VA psychiatric examination concluded that the Veteran's psychiatric condition would result in difficulties with occupational functioning. Resolving any reasonable doubt regarding the question of the Veteran's employability in his favor, the Board concludes that a TDIU on an extra-schedular basis is warranted. ORDER A total disability rating based on individual unemployability due to service-connected disabilities on an extra-schedular basis under 38 C.F.R. § 4.16(b) is granted, subject to the regulations governing monetary distribution of benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs