Citation Nr: 1325549 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-04 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) on a schedular basis. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) on an extra-schedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from February 1974 to February 1979. These matters come before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2010, the Veteran presented testimony before RO personnel; in January 2013, the Veteran appeared before the undersigned Veterans Law Judge and delivered sworn testimony via video conference hearing in Detroit, Michigan. Transcripts of the hearings are of record. The issue of entitlement to a TDIU on an extra-schedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is service-connected for generalized anxiety disorder, rated as 50 percent disabling; his combined disability rating is 50 percent. 2. The Veteran does not meet the criteria for the assignment of a TDIU on a schedular basis. CONCLUSION OF LAW The criteria for the assignment of a TDIU due to service-connected disability on a schedular basis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in June 2009 of the criteria for establishing entitlement to TDIU, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. In the June 2009 letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in July 2009. As for VA's duty to assist, service treatment records are associated with the claims file, as are VA and private medical records. The Board acknowledges that the Veteran has indicated that he is in receipt of disability benefits from the Social Security Administration (SSA) for his service-connected psychiatric disorder. However, the Board finds that these records are not necessary to arrive at a decision as to the Veteran's claim for entitlement to a TDIU on a schedular basis. As discussed below, the Veteran does not meet the threshold combined disability rating required for eligibility for a TDIU on a schedular basis. There is no need to delay adjudication of the Veteran's claim for entitlement to a TDIU on a schedular basis for remand to obtain SSA records as regards the claim decided herein. Nonetheless, as will be discussed in the remand section below, the potential existence of relevant SSA records may be relevant to the matter of assignment of TDIU on an extra-schedular basis. The evidence of record contains sufficient competent medical evidence to decide the claim. In this regard, the Board notes that the October 2011 VA psychiatric examination is adequate to address the medical matters raised by this appeal. During the January 2013 Board video hearing, to assist the Veteran, the undersigned asked questions to determine if there was any evidence outstanding pertinent to his claims, including SSA records. The undersigned also explained to the Veteran what was necessary to obtain entitlement to a TDIU on both a schedular basis and extra-schedular basis. The undersigned also informed the Veteran that the record would be held open for 90 days in an effort to give the Veteran additional time to submit evidence in support of the appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Analysis Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). The Veteran's is service-connected for generalized anxiety disorder, rated as 50 percent disabling. Service connection is not in effect for any other disability. Accordingly, as the Veteran does not have a single service-connected disability ratable at 60 percent or more, the Veteran does not meet the requirements as to warrant schedular entitlement to a TDIU and, to this extent, the claim must be denied. 38 C.F.R. § 4.16(a). However, 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. Thus, TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In the case of Veterans who are, in fact, unemployable by reason of service-connected disabilities, but who fail to meet the aforementioned schedular criteria, entitlement to the benefit on an extra-schedular basis may be considered by the Director of the Compensation and Pension Service, with consideration given to the Veteran's background, including his employment and educational history. 38 C.F.R. § 4.16(b). For the reasons set forth in the remand section below, the Board finds that a remand is necessary to perform evidentiary development that may result in consideration of an extra-schedular TDIU award. ORDER Entitlement to a TDIU on a schedular basis is denied. [Continued on Next Page] REMAND As indicated above, further evidentiary development is necessary before appellate review may proceed on the Veteran's claim of entitlement to TDIU benefits on an extra-schedular basis. Specifically, as there may be relevant SSA records, the issue of entitlement to TDIU on an extra-schedular basis must be remanded for the reasons discussed below. As discussed above, entitlement to TDIU may be accomplished in two ways. First, TDIU is available for Veteran who meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. The Veteran may, however, be entitled to a TDIU based on extra-schedular considerations under 38 C.F.R. § 4.16(b). On his January 2010 claim for TDIU the Veteran indicated that he had last worked in January 2008 and had been laid off from his job as a machine press operator. At his June 2010 RO hearing the Veteran indicated that he had last worked in January 2008 and was in receipt of SSA disability benefits since July 2008. The Veteran stated that the SSA benefits had been awarded, at least in part, based on his service-connected anxiety. The Veteran made similar assertions concerning his SSA benefits at the January 2013 Board video hearing. At an October 2011 VA psychiatric examination the examiner noted that the Veteran's symptoms included panic attacks that occurred more than once a week, impairment of short- and long-term memory, and difficulty in establishing and maintaining effective work relationships. The examiner indicated that the Veteran had occupational impairment with deficiencies in most areas, such as work and judgment. The Global Assessment of Functioning (GAF) score was 50, reflecting serious impairment in occupational functioning. The evidence in the claims file reasonably raises the question of whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability pursuant to 38 C.F.R. § 4.16(b). In this regard, it has been asserted that the Veteran was awarded SSA disability benefits, at least in part, based on his service-connected anxiety disorder. While not binding, the SSA's determination as to the Veteran's employability is relevant evidence. Further, the October 2011 VA examiner has indicated that the Veteran has difficulty in establishing and maintaining effective work relationships and has serious impairment in occupational functioning. As records associated with the Veteran's SSA determination could be relevant to the claim on appeal, any available medical or other records associated with the Veteran's application for SSA disability benefits must be obtained and associated with the claims file. VA is required to obtain disability records from the SSA if VA determines, without review of the actual records, that there is a reasonable possibility that such records are "relevant" to the Veteran's claim for VA disability compensation. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Director of the Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board may, however (as in this case), consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. § 4.16(b), and further may determine, after an initial review by the authorities pursuant to 38 C.F.R. § 4.16(b), the propriety of assigning an extraschedular evaluation. In this case, as the alleged SSA determination and associated record has not been obtained, the Board does not have enough information to determine whether referral to Director of the Compensation & Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b) is warranted. On remand, the Agency of Original Jurisdiction (AOJ) shall first attempt to obtain the alleged SSA records, evaluate the records, determine whether referral to Director of the Compensation & Pension Service is warranted, and otherwise readjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall inform the Veteran of the requirements for TDIU extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) , and permit the Veteran an opportunity to supplement the record as desired. 2. The AOJ shall use all reasonable efforts to obtain all records related to the Veteran's alleged application(s) for SSA benefits, including all SSA determinations and supporting documentation. If no SSA records are located, request that the negative response be provided in writing; the written response should be placed in the file. 3. After associating with the claims file all available records and/or responses received pursuant to the above-requested development, take any additional development deemed necessary. 3. Thereafter, the AOJ shall re-adjudicate the Veteran's claim of entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), including whether referral of the matter for consideration by the Director, Compensation and Pension Service for TDIU an extra-schedular basis is warranted. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs