Citation Nr: 1319652	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  05-06 389A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), from May 6, 2002, to May 19, 2008.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and her son


ATTORNEY FOR THE BOARD

K. Gielow, Counsel


INTRODUCTION

The Veteran had active service from October 1984 to January 1995.  

This appeal arises before the Board of Veterans' Appeals (Board) from a February 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

A Travel Board hearing was held in May 2008 before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) and who is rendering the determination in this case.  Additionally, the Veteran provided testimony at a local hearing before a Decision Review Officer in June 2003.  Transcripts of both hearings have been associated with the claims file.  

This issue was previously before the Board in November 2008 and July 2011, at which time the claim was remanded for additional development.  As the Board explained in its July 2011 remand, by way of history, entitlement to a TDIU was granted during the course of the appeal, effective May 19, 2008, in a December 2010 rating decision.  This was considered a full grant of benefits sought on appeal to this issue since May 19, 2008.  The issue of TDIU was recharacterized to include only that time prior to the full grant, from May 8, 2002, to May 19, 2008.  After reviewing the Veteran's TDIU claim, however, the Board finds that the Veteran's letter received on May 6, 2002, adequately conveyed her intent to file a claim for TDIU and was received prior to her VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) of May 8, 2002 .  Therefore, the issue on appeal has been slightly modified to account for the earlier date of claim.    


FINDING OF FACT

Throughout the appeal period, the Veteran's service-connected migraines prevented her from securing or following substantially gainful employment.


CONCLUSIONS OF LAW

1.  From May 6, 2002, to November 30, 2003, the criteria for entitlement to TDIU on a schedular basis are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2012).

2.  From December 1, 2003, to May 19, 2008, the criteria for entitlement to TDIU on an extraschedular basis are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§ 4.16(b) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim for TDIU given the favorable nature of the Board's decision herein.  Inasmuch as the determination below constitutes a full grants of the benefits sought, any error in notice or assistance is harmless. 

II.  Total Disability Rating Based Upon Individual Unemployability 

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 (2012).  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012).

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(b).

In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income.  In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his or her service-connected disabilities alone are of sufficient severity to produce unemployability.  The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).  Further, in determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered.  38 C.F.R. § 4.19 (2012).

In the present case, for the time period on appeal prior to December 1, 2003, the Veteran had at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  Based on these ratings, the Veteran meets the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a) for consideration of TDIU on a schedular basis prior to December 1, 2003.

However, for the time period from December 1, 2003, to May 19, 2008, the Veteran's migraine disability was reduced from 40 percent to 20 percent disabling, and her overall combined evaluation for all service-connected disabilities was reduced to 60 percent.  Accordingly, she does not qualify for schedular consideration under § 4.16(a) for this time period; rather, from December 1, 2003, to May 19, 2008, the Board must consider whether she is entitled to TDIU on an extraschedular basis under § 4.16(b).  It is recognized that the Board may not assign an extraschedular rating in the first instance; however, in this case, the Appeals Management Center (AMC) referred the case to the Director of Compensation and Pension Service.  In January 2013, the Director of Compensation and Pension Service's designee approved a decision that denied entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b).  Because the case has been referred to the Director, the Board may now proceed to enter a final appellate decision on extraschedular entitlement.  Thus, the Board will adjudicate whether the evidence sufficiently shows that the Veteran is nonetheless "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities," which is essentially the same standard of entitlement set forth under § 4.16(a) for schedular evaluations, so as to warrant an extraschedular TDIU rating under § 4.16(b).  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (recognizing that "the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16"); 

After carefully reviewing the entire claims file, the Board finds that that the evidence demonstrates that the Veteran is prevented from securing or following substantially gainful employment due to her service-connected migraines throughout the entire appeal period.  Here, the Veteran submitted numerous lay statements indicating that her migraines prevent her from obtaining and maintaining employment.  She indicated that she last worked in 1995, but lost both of those jobs as a result of her migraines and has been unable to work since.  In support of her claim, she also submitted statements from her husband, ex-husband, father, sister, and friend.  Although this evidence is competent to relate that the Veteran has not worked from 2002 to 2008, the Veteran and these persons have not been shown to have the requisite education and training to provide a competent opinion as to whether the Veteran's service-connected disabilities alone are so severe so as to preclude gainful employment.

Such competent evidence regarding the cause of the Veteran's lack of employment has been provided by various vocational and medical professionals throughout the appeal period.  In this regard, in March 2002, just prior to the appeal period, the Vocational Rehabilitation Counselor stated that "it is believed that no employer would employ you or keep you employed with your limitations and barriers."  Additionally, the Counselor did "not expect [the Veteran's] condition to change within the next 12 months," which falls squarely within the time period on appeal.  According to the Vocational Rehabilitation Counselor's VA Form 28-1902n, it was determined that the Veteran had "an impairment of employability" and that the Veteran's "service connected disability materially contribute[s] to this impairment of employability."  Although it was recognized that the Veteran had other non-service connected disabilities, it was specifically opined that the "Veteran's SC disabilities leave the [V]eteran with numerous and multiple barriers to seeking or obtaining employment. . ..  Without much exception, no employer would hire a person with such limitation and disabilities."  Thus, the Vocational and Rehabilitation Counselor sufficiently indicated that the Veteran's service-connected disabilities alone would preclude employability.  

Additionally, not to be overlooked is the opinion provided by the September 2011 VA examiner after the Board remanded this case in July 2011 to assess the past effect of the Veteran's service-connected disabilities on employment.  Significantly, although other service-connected disabilities were not found to preclude employment, the examiner specifically found that the Veteran's service-connected migraines resulted in severe functional limitation.  It was stated that "[t]he Veteran is NOT capable of sedentary to light or moderate duty employment, based on this SC condition because of prostrating migraines between [the] period from 1995 until the present time (2002-2008 inclusive)."  The rationale for this opinion cited to various evidence within the claims file, including the Vocational and Rehabilitation assessment discussed above.

To the extent that the Director of Compensation and Pension endorsed a finding that "there is no competent medical evidence indicating that the [V]eteran was unable to obtain or maintain substantial gainful employment solely based on service connected disabilities," this is an inaccurate statement of facts.  It is clear that such conclusion was rendered without consideration of the September 2011 VA examiner's retrospective opinion.  In fact, the only mention of the September 2011 opinion indicated that the Veteran's other disability relating to a hysterectomy produced no functional loss.  The omission of the September 2011 opinion's favorable findings greatly impairs the probative value of the Director of Compensation and Pension's assessment.  

On the other hand, the Board finds no adequate basis to reject the evidence and medical opinions of record that are favorable to the Veteran, based on a rational that there is a lack of credibility or probative value.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998).  In fact, the competent and probative evidence strongly supports the grant of TDIU, and the Board finds that it has been sufficiently demonstrated that she is unable to secure or follow a substantially gainful occupation solely as a result of her service-connected disability throughout the entire appeal period.  

As a final matter, in assessing the time period on appeal from May 6, 2002, to May 19, 2008, the Board recognizes that the provisions of 38 C.F.R. § 3.400(o)(2), which apply to claims for an increase, state that if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred (factually ascertainable).  38 C.F.R. § 3.400(o)(2).  This indicates that the Board may look to the one-year time period prior to the date an increased rating claim is filed as a basis for assigning a higher rating.  Even if 38 C.F.R. 
§ 3.400(o)(2) applies to the Veteran's claim for TDIU, however, she has consistently described and submitted evidence of unemployability since her discharge from service in 1995.  The Board must therefore conclude that any increase in disability preceded the claim by more than a year; thus, the appropriate time period that must be contemplated for a grant of TDIU is from May 6, 2002, onward.  See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide veterans with a one-year grace period for filing a claim following an increase in a service-connected disability).  

Accordingly, TDIU-on a schedular basis from May 6, 2002, to November 30, 2003, and on an extraschedular basis from December 1, 2003, to May 19, 2008-is granted.


ORDER

TDIU on a schedular basis from May 6, 2002, to November 30, 2003, is granted, subject to governing criteria applicable to the payment of monetary benefits.

TDIU on an extraschedular basis from December 1, 2003, to May 19, 2008, is granted, subject to governing criteria applicable to the payment of monetary benefits.




____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs