Citation Nr: 1325487 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-27 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Boston, Massachusetts, Regional Office (RO) of the U.S. Department of Veterans Affairs (VA) which, in part, denied entitlement to a TDIU. In December 2010 and December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated April 2011 to March 2013. FINDING OF FACT Service connected disabilities prevent the Veteran from engaging in gainful employment for which he otherwise is qualified. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Legal Criteria 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 disabilities that are not service connected. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100-percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and that - if there is only one service-connected disability, it is rated as at least 60-percent disabling, or, if more than one disability, at least one disability is rated as at least 40-percent disabling and the Veteran has a combined rating of at least 70 percent. Id. But see, in particular, 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) 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 the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And in this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Analysis The Veteran is currently service-connected for the following disabilities: (i) residuals of a right ankle fusion, rated as 40 percent disabling; (ii) residuals of a left ankle fracture, rated as 20 percent disabling; (iii) left gynecomastia with cellulitis, rated as 10 percent disabling; and, (iv) a superficial scar on the right ear, rated as noncompensable (0 percent). These ratings combine to 60 percent. See 38 C.F.R. § 4.25. Therefore, the Veteran does not have a combined rating of at least 70 percent for consideration of a TDIU under 38 C.F.R. § 4.16(a). As the Veteran fails to meet the applicable percentage standards, the Board will now consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In this regard, the Veteran has stated on a number of occasions that he is unemployable due to his service-connected disabilities. After a review of the competent evidence, despite the fact that the schedular criteria have not been met, the Board finds that TDIU is warranted on an extraschedular basis. Here, in a December 2005 statement, the Veteran stated that due to his age physical condition, he is unable to sustain gainful employment. The Veteran has stated in his November 2006 notice of disagreement that he has been unable to work since February 25, 2005. A review of the Veteran's VA treatment records did not reveal any evidence dispositive of the issue of the Veteran's employability. A May 2002 VA treatment note indicated that the Veteran had stopped working as a cook and began employment as a parking attendant. In a February 2006 VA examination, the Veteran stated that he worked as a cook full time until 2002, when he had to stop working in that field due to increased pain. A December 2011 treatment note indicated that the Veteran had been previously employed as a cook and a parking lot attendant. The Veteran was afforded a VA General Medical examination in March 2011. Following a physical examination of the Veteran and a review of the Veteran's claims file, the VA examiner determined that the Veteran's service-connected disabilities render him unable to gain employment doing heavy work or labor. However, the examiner found that the Veteran's service-connected disabilities do not prevent the Veteran from performing sedentary labor. The examiner did not provide an opinion regarding whether the Veteran has the necessary work experience and education to obtain sedentary employment. In this regard, the Board notes that the Veteran currently receives disability benefits from the Social Security Administration (SSA) for "osteoarthrosis and allied disorders." See December 1998 SSA decision. In his SSA application, the Veteran asserted that, following his ankle fusion surgery, he was not able to stand and thus not able to work in his prior occupation as a cook. The Veteran's SSA application documents that all of the Veteran's prior occupations involved standing: cook, bartender, and mail handler. See August 1998 SSA application. The SSA examination reports that the Veteran's highest level of education was the 11th grade of high school. The Veteran did not complete any further education. See November 1998 SSA examination. The Board remanded the claim in December 2012 in order to have the AMC refer the issue of extraschedular consideration for TDIU reviewed by the Director of Compensation Service. In March 2013, the AMC drafted a memorandum recommending denial of an extraschedular evaluation. In support, the AMC cited the Veteran's March 2011 VA examination, in which it was opined that the Veteran's service-connected disabilities rendered him unable to gain employment doing heavy work or labor but did not render him unable to find sedentary labor, as well as the Veteran's VA treatment records, which did not show ongoing treatment for the Veteran's service-connected disabilities. The Director of Compensation Service issued a decision in May 2013 in which he denied the Veteran's request for an extraschedular evaluation. In support, the decision cited the Veteran's March 2011 VA examination, in which it was opined that the Veteran's service-connected disabilities rendered him unable to gain employment doing heavy work or labor but did not render him unable to find sedentary labor. It was also noted that the Veteran was currently totally unemployable due to a non service-connected stroke. Neither the AMC memorandum nor the Director of Compensation Service decision discussed the Veteran's educational background or prior work history. The Board has determined that, based upon the Veteran's competent and credible statements, he is unemployed and has been so since February 2005. The Veteran is competent to testify regarding his work history. Also, the Veteran's VA treatment records and SSA records are consistent with the work history dates provided by him and tend to corroborate the Veteran's assertion of his employment and educational level. In this regard, the Board finds the Veteran's claimed unemployment to be credible. See 38 C.F.R. § 3.303(b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, to date, the Veteran has never performed sedentary employment, and the claims file does not include evidence indicating that the Veteran has the necessary skills and experience to perform sedentary employment. Therefore, this evidence suggests that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation - particularly in light of the Veteran's prior work experience as a cook and high school education. The Board points out that the evidence need not show that the Veteran is unemployable in any capacity. Rather, consideration of whether a veteran is entitled to TDIU "must be looked at as a practical matter, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (quoting Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). In this case, the Board recognizes that the Veteran's disability would not seemingly preclude sedentary work. However, adapting the Veteran's work experience for such a position would involve training and education that is not, at this point, reasonably feasible, due to his limited high school education and work history. In making this conclusion, the Board notes the May 2013 Director of Compensation Service decision, which concluded that the Veteran's service-connected disabilities did not preclude him from maintaining gainful employment via sedentary types. However, this decision did not present any expressed rationale as to why TDIU was not warranted on an extraschedular basis or evaluate the totality of the Veteran's circumstances, to include his limited education and work history. Moreover, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's jurisdiction to review the denial of an extraschedular rating on appeal. Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996); see also Anderson v. Shinseki, 22 Vet. App. 423 (2009). Therefore, as the evidence establishes that the Veteran is unemployable due to his service connected disability, the Board finds that entitlement to TDIU is warranted on an extraschedular basis. ORDER Entitlement to TDIU is granted on an extraschedular basis. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs