Citation Nr: 1325616 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 00-13 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to total disability based on individual unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Veteran represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Air Force from June 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Veteran's Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which denied entitlement to TDIU. FINDING OF FACT The Veteran is currently civilly committed to a secure mental health facility, and has been in the facility during the entirety of this claim. CONCLUSION OF LAW The Veteran is barred from receiving TDIU benefits as a matter of law. 38 U.S.C.A. § 5313 (West 2002 & Supp. 2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims entitlement to a TDIU rating based on his service-connected disabilities. He is currently service-connected for the following disabilities: coronary artery disease; diabetes mellitus, type II; and bilateral cataracts. Although VA has statutory and regulatory duties to notify and assist claimants, those provisions are not applicable to this appeal, because resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (noting that the duties to notify and assist are not applicable where law is dispositive); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). VA will grant TDIU where the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). VA shall not assign to any veteran a TDIU rating during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony. 38 U.S.C.A. § 5313(c). Penal institution, correctional facility, and incarcerated are undefined by law or regulation. The primary legislative purpose for this limitation is "to prevent duplication of governmental expenditures benefiting incarcerated persons in receipt of veterans' compensations." VAOPGCPREC 5-2006 (August 11, 2006) (noting that interpretation of Section 5313 to result in double governmental expenditures would "thwart Congress' clear purpose for the reduction in benefit payments"). As one sponsor of the bill stated, there was no wisdom in providing tax-free benefits to incarcerated individuals "when at the same time the taxpayers of this country are spending additional thousands of dollars to maintain these same individuals in penal institutions." VAOPGCPREC 5-2006 (citing 126 Cong. Rec. 26, 118 (1980)). During the pendency of this appeal the Veteran has been confined to the Sand Ridge Secure Treatment Center (Sand Ridge), under a Wisconsin State statute providing for civil commitment for certain sexually violent offenders. According to the records contained in the claims file, the Veteran was convicted of three felonies (one charge of 1st degree sexual assault, and two charges of 2nd degree sexual assault). He served sentences for these convictions in a state penal institution. At the conclusion of his criminal sentence, a petition was filed to have the Veteran committed under Chapter 980. Under Chapter 980, a person may be subject to a civil commitment when the person has been convicted of a sexually violent offense, has a mental disorder, and is dangerous to others because the mental disorder makes it likely he or she will commit further acts of sexual violence. A civil commitment is defined as commitment to the custody and care of the Department of Health Services for control, care, and treatment until the person is no longer considered sexually violent. See WIS. STAT. ch. 980 (2005-06). The Veteran was transferred to a secure mental health facility subsequent to the conclusion of his criminal sentence. He entered the secure facility in 1994, and a civil jury determined commitment was appropriate in 1996. The Veteran has remained in a secure mental facility. The Veteran, in 1998, submitted evidence to the VA where he argued that his status as a civilly committed veteran was different from being an "incarcerated" veteran. His arguments included copies of a Wisconsin Circuit Court decision, wherein the Judge found that although Chapter 980 committees were housed in department of corrections facilities, they were not "incarcerated persons" because they had completed their criminal sentences. The Judge noted that civilly committed persons were overseen by medical personnel and not by prison guards. Additional evidence provided by the Veteran included a petition to the court for a transfer to a VA facility. The Wisconsin court found that transfer to a VA facility was not an option for the Veteran because the VA facility was not "secure." In March 2001, the Veteran described his commitment as confinement to a maximum security mental unit, and indicated his commitment was "indefinite." Indeed, although the Chapter 980 statutes allow for the eventual discharge of committed persons, subject to approval, the Veteran has remained confined despite statements from evaluators that he was below the "more likely than not" standard of recidivism. The Board finds that a TDIU rating is barred as a matter of law. Since the completion of his criminal sentence for felony sexual assault convictions, the Veteran has been civilly confined to a secure mental health facility. Section 5313 bars TDIU benefits to veterans incarcerated in a penal institution or correctional facility for conviction of a felony. It is unclear whether the secure facility the Veteran is committed to is a penal institution or correctional facility. Likewise, it is unclear if the Veteran is "incarcerated" for purposes of Section 5313. But to award the Veteran benefits while he remains committed would be contrary to the purposes behind the enactment of Section 5313 - avoidance of double payment to claimants. The Veteran is legally confined due to a history of repeated sexual assault, and felony convictions for such, is unable to discharge himself from the mental facility. His commitment is paid for by the taxpayers of Wisconsin; to award him tax-free TDIU benefits would result in double governmental expenditures would "thwart Congress' clear purpose for the reduction in benefit payments." VAOPGCPREC 5-2006. Therefore, the Board determines that the Veteran is legally barred from TDIU benefits. ORDER Entitlement to TDIU is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs