Citation Nr: 1322664 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 04-27 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from January 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The claims file was subsequently transferred to the RO in Portland, Oregon. In November 2010, the Veteran requested a hearing, but did not specify what type of hearing. In a January 2011 statement, the appellant stated that he did not want a Board hearing. A March 2011 statement from his representative further clarified that he does not want a formal hearing, including a formal RO hearing. Thus, the Veteran's hearing request is deemed to be withdrawn. In March 2013, the Board remanded the issue of total disability based upon individual unemployability. However, as will be explained below, another remand is necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected. Id. In this case, service connection is in effect for residuals of removal of a ganglion cyst of the right wrist, rated as noncompensable, and for residuals of a T12 compression fracture, rated as 20 percent disabling. As such, the Veteran's combined disability evaluation is 20 percent. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, the Veteran does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. To award TDIU on an extraschedular basis, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. In this case, the evidence of record is unclear as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. A review of the claims file reveals that Veteran worked most of his life as a heavy equipment operator. He had also previously owned several gas stations, a furniture manufacturing company, a rental truck business, a diesel-repair business, and a delicatessen. He eventually sold the delicatessen because he was unable to work the 12 to 14 hour days it required. He has indicated that he is dyslexic, but he has never been formally diagnosed with dyslexia. In addition, he has expressed his belief that he cannot perform any clerical job involving computers, again because he believes he is dyslexic. In a September 2006 decision, the Social Security Administration (SSA) determined that the Veteran had been under a disability since August 1, 2005, and that he had not engaged in substantial gainful activity since that date. Specifically, the SSA decision found that the Veteran suffered from a combination of severe impairments impacting his ability to work, to include a history of polyneuropathy with chronic pain, degenerative disc disease, thoracic compression fracture, bilateral shoulder arthritis, hypertension, gastroesophageal reflex disease, obesity, and major depressive disorder. The Board notes that the thoracic compression fracture is the only one of these disorders which is service connected. The RO provided the Veteran with VA examinations in July 2007 and May 2012. The July 2012 VA examiner concluded the service-connected thoracic compression fracture decreased the Veteran's ability to work in manual labor as he previously did, but that it did not completely eliminate his ability to do sedentary work. The May 2012 examiner concluded that the Veteran's service-connected compression fracture and right wrist disorder limited him to sedentary occupations. As noted, however, the Veteran has stated he is dyslexic and in correspondence dated in October 2012, the Veteran's brother-in-law corroborated the Veteran's account of dyslexia. The brother-in-law also stated he has had to help the Veteran in understanding documents over the years and the Veteran's dyslexia kept him from ever learning how to use a computer. He stated the Veteran had never even owned a computer. This information, if true, casts the Veteran's reading and writing capabilities, as well his computer literacy, into doubt; as such, the Veteran's options for gainful sedentary employment may be extremely limited. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It might be a relevant factor if a referral to the Director of Compensation and Pension is deemed necessary. See 38 C.F.R. § 4.16(b) (rating board shall include 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). As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal. See also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted above, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As neither the July 2007 VA examiner nor the May 2012 VA examiner discussed the effect of the Veteran's reading and writing capabilities, and lack of computer literacy upon the Veteran's ability to obtain and maintain gainful sedentary employment, the Board remanded the issue of total disability based upon individual unemployability in March 2013. On remand, the Veteran was provided a VA examination in May 2013 regarding his thoracic compression fracture disability and ganglion cyst disabilities. The VA examiner again concluded sedentary desk type work was feasible with frequent breaks to stand and stretch and limitations involving hand use. The examiner, however, also did not discuss the Veteran's apparent limitations in reading, writing, and use of computers. Stated another way, the examinations to date have addressed whether the Veteran can perform the physical acts required by sedentary employment, but not whether he is capable of performing the mental acts of sedentary employment. See Van Hoose, supra. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the May 2013 VA examination is inadequate, the Board finds that the claim must be remanded for a clarifying opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided a VA evaluation by a vocational specialist to ascertain whether he is unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. A complete rationale for all opinions should be provided. The examiner is asked to assess the Veteran's ability to secure or follow a substantially gainful occupation solely on the basis of his service-connected disabilities and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities alone, considered in combination, prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience. When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities such as polyneuropathy with chronic pain. The examiner is asked to reconcile his/her opinion with the Veteran's assertions regarding his reading and writing capabilities and lack of computer literacy as it relates to securing or following a substantially gainful occupation, consistent with his education and occupational experience. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). 3. If the evidence from the opinion, or other evidence, demonstrates that the Veteran is unemployable due to his service-connected disabilities alone, considered in combination, then refer the claim to the Director of Compensation for consideration of an extra-schedular rating. 4. After the foregoing development is completed, adjudicate the claim of entitlement to TDIU. If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).