Citation Nr: 1316666 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 05-28 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active and inactive duty for training from June 1989 to April 1993. Her confirmed periods of active duty for training (ADUTRA) were from July 5 through August 3, September 17 through September 23, and October 9 through November 7, 1989; from March 11 to March 24, 1991; drills on August 18-19 and September 22-23, 1990; and January 11-12, March 21, 25, April 22, 25, June 20-21, July 25-26, and August 21, 1993. There is also evidence from payroll records, orders, and other service department records, that the appellant had other periods of inactive duty for training (INADUTRA) (drills) from 1989 to 1992. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that among other things denied entitlement to a TDIU. In September 2005, the Veteran testified during a personal hearing at the RO and, in February 2008, she testified during a hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In August 2009, the Board, among other things, remanded the claim for a TDIU for further development. In February 2012, the Board remanded the matter for readjudication and referral to the Under Secretary for Benefits or the Director of Compensation Service for consideration of assignment of an extraschedular evaluation. VA treatment records dated from October 2008 through February 2012 were electronically available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Virtual VA eFolder in February 2012. The records were noted in a February 2012 Memorandum to the Director of Compensation Service (previously called the Director of Compensation and Pension Service) and the claim was readjudicated in a February 2013 supplemental statement of the case (SSOC). Additional CAPRI records were uploaded to Virtual VA dated through April 2013 without a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). However, the evidence was either duplicative of evidence already associated with the claims file and previously considered or was not pertinent to the present appeal. See 38 U.S.C.A. § 20.1304 (2012). FINDINGS OF FACT 1. Service-connection is in effect for: lumbar sprain/strain with degenerative disc disease, evaluated as 10 percent disabling rated prior to July 21, 2003 and 20 percent disabling from that date; cervical sprain/strain with degenerative disc disease, evaluated as 10 percent disabling prior to July 21, 2003 and 20 percent disabling from September 26, 2003; and peripheral neuropathy of the right and left upper extremities, which were assigned separate 10 percent disability ratings, effective from February 21, 2006. The combined ratings are 20 percent prior to July 21, 2003; 30 percent from July 21, 2003 and prior to September 26, 2003; 40 percent from September 26, 2003 and prior to February 21, 2006, and 50 percent from February 21, 2006. 2. The Veteran's case was referred to the Director of Compensation and Pension Service for extra-schedular consideration of entitlement to a TDIU, under 38 C.F.R. § 4.16(b), and in March 2012, the Director of Compensation and Pension Service determined that an extra-schedular total disability rating is not warranted. CONCLUSION OF LAW The schedular criteria for entitlement to a total rating based upon individual unemployability due to service-connected disabilities are not met, and the Board does not possess the authority to award an extra-schedular rating. 38 U.S.C.A. §§ 1155, 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist In August 2003 and April 2011 letters, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012). The AOJ notified the appellant of information and evidence necessary to substantiate her claim. She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. The April 2011 letter provided notice as to the assignment of appropriate disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge essentially outlined the issues on appeal and asked questions to obtain information regarding the Veteran's highest level of education, occupational experience, and the disabilities were effecting her employment. She was also asked about her treatment providers in order to ascertain whether there was additional evidence she could submit. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012); she has not identified any prejudice in the conduct of the Board hearing. VA has done everything reasonably possible to assist the appellant with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records and VA and private medical records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. Further, in March and September 2003, February 2006, and January 2011, VA examinations were performed, and the reports are of record. As noted above, in August 2009, the Board remanded the Veteran's claim for further development. In February 2012, the Board submitting his case to the VA Director of Compensation and Pension Service for extra-schedular consideration of her TDIU claim and for readjudication. There has been substantial compliance with this remand, as February 2012 Memorandum from the VA Director of Compensation Service reflects review of the Veteran's TDIU claim. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis In May 2003, the RO received the Veteran's informal claim for TDIU. On VA Form 21-8940 received in July 2003, she reported that she has not worked since April 1993 due to her back and neck disability as well as her post traumatic stress disorder. She indicated that she had not tried to obtain employment since she became too disabled to work. In service, she worked as a Mess Management Specialist (MS)/cook/store keeper. She indicated that from February to March 2003, she went through the VA Vocational Rehabilitation Program for pharmacy, but that her disabilities (identified as PTSD and back and neck pain) became too much. A TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Unemployability associated with advancing age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19. Factors to be considered are the veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; 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. The record reflects that the Veteran has not held full time work since her discharge from service in April 1993. She does not meet and never has met the schedular criteria for a TDIU during the course of the appeal. Therefore, an award of TDIU on a schedular basis is not warranted. In a March 2012 Administrative Review for Extra-Schedular Consideration under 38 C.F.R. § 4.16(b), the Director of Compensation Service noted that the Veteran's claims folder was reviewed. The Director acknowledged that the Veteran had a statement from her doctor that indicated that she was unemployable due to her neck and back, however, her non-service connected fibromyalgia and depression were also listed as causes. The Director reported that the Veteran has not been hospitalized for any significant period of time due to her service-connected disabilities. There was no indication that radiculopathy had any effect on employment. The Director noted that the Veteran still had the majority of her range of motion in her lumbar and cervical spine. The Director found that the totality of the evidence did not support the contention that her service-connected disabilities were so exceptional or unusual to render inapplicable the use of the regular rating scheduled standards impractical. The Director reasoned that there was no indication that the Veteran would be unemployable in a sedentary environment that would not put stress on her neck or back. The Board remanded the claim to allow the Compensation and Pension Service Director to consider entitlement to TDIU on an extra-schedular basis. The Compensation and Pension Service Director determined that the Veteran was not entitled to TDIU under 38 C.F.R. § 4.16(b). Because the case has already been referred to the Compensation and Pension Service Director, there is effectively no longer any remaining allegation of error of fact or law concerning the claim on appeal. That is, the Board has no authority to award a higher rating on an extra-schedular basis or compel the Compensation and Pension Service Director (or the Under Secretary for Benefits) to do so. The United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the matter in Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). It was indicated that "only the Under Secretary [for Benefits] and the Compensation and Pension Service Director have the authority to award an extra-schedular rating." Thun, 572 F.3d at 1370 (emphasis added). The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extra-schedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extra-schedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extra-schedular rating 'to accord justice.'" Id. The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the Compensation and Pension Service are the only individuals authorized to assign an extra-schedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extra-schedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review. "If the regional office or the Board makes factual findings adverse to the claimant with regard to the extra-schedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. Given the Federal Circuit's interpretation of the extra-schedular provisions of 38 C.F.R. § 4.16(b), only the Compensation and Pension Service Director or Under Secretary for Benefits have the authority to award an extra-schedular rating. The Board possesses no such authority be it in the first instance or any instance. The delegation of authority for the Director of Compensation and Pension Service to assign an extra-schedular rating is appropriate, given that the Director of Compensation and Pension Service has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations." Anderson v. Shinseki, 22 Vet. App. 423, 431 (2008) (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100). "This makes the Director of Compensation and Pension Service uniquely suited to determining what extraschedular rating level is warranted. On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule." Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)). In sum, with respect to the assignment of an extra-schedular disability rating to "accord justice" (i.e. equity), only the Under Secretary for Benefits and the Compensation and Pension Service Director have been delegated the authority to award the extra-schedular disability rating. Thun, 572 F.3d at 1370. In the Veteran's case, because the Board does not possess the authority to make an equitable award of an extra-schedular disability rating, there is no allegation of error of fact or law concerning this appeal over which the Board has jurisdiction, and the Board finds that the appeal as to a TDIU, under 38 C.F.R. § 4.16(b) must be denied. See 38 U.S.C.A. § 7105(d)(5). ORDER Entitlement to a TDIU is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs