Citation Nr: 1334714 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 03-29 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to December 4, 2003. 2. Entitlement to TDIU on an extraschedular basis prior to August 12, 2003. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Milwaukee, Wisconsin, VA Regional Office (RO). This case was most recently before the Board in April 2013 wherein TDIU was awarded effective from December 4, 2003. The matter of entitlement to TDIU, to include on an extraschedular basis, for the period prior to December 4, 2003, was remanded for additional development. The claim of entitlement to TDIU on an extraschedular prior to August 12, 2003, 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. As of August 12, 2003, the Veteran's service-connected disabilities consisted of migraine headaches, evaluated as 10 percent disabling; chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as 20 percent disabling; residuals of a right femur fracture including impairment of the right knee, evaluated as 20 percent disabling; left hip condition including degenerative changes associated with residuals of the right femur fracture including impairment of the right knee, evaluated as 10 percent disabling; radicular nerve root paresthesias over the right gluteal area associated with chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as 10 percent disabling; cervical strain with degenerative joint disease associated with chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as noncompensable; and residuals of a zygomatic fracture, evaluated as noncompensable. 2. The combined evaluation beginning August 12, 2003, was 60 percent disabling when employing the bilateral factor for Diagnostic Codes 5255, 5252, and 8520. 3. Affording the Veteran all reasonable doubt, his service-connected disabilities are shown to be productive of an overall disability picture manifested by the Veteran being precluded from working at substantially gainful employment consistent with his educational and occupational background beginning August 12, 2003. CONCLUSION OF LAW As of August 12, 2003, the criteria for an award of TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is granting in full the benefit sought on appeal for the period beginning August 12, 2003. In light of the favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. A TDIU rating is assigned when service-connected disabilities result in such impairment of mind or body that the average person is so disabled that he is precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). Finally, the service-connected disabilities must be so severe as to produce unemployability, in and of themselves, without regard to unemployability attributable to age of the veteran or to other disabilities for which service connection has not been granted. 38 C.F.R. § 3.341. That is, a TDIU rating may not be assigned if unemployability is a product of advanced age, or of other nonservice-connected disabilities, rather than a result of functional impairment due solely to service-connected disabilities. 38 C.F.R. § 4.19. Effective August 12, 2003, the Veteran's service-connected disabilities consisted of: migraine headaches, evaluated as 10 percent disabling; chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as 20 percent disabling; residuals of a right femur fracture including impairment of the right knee, evaluated as 20 percent disabling; left hip condition including degenerative changes associated with residuals of the right femur fracture including impairment of the right knee, evaluated as 10 percent disabling; radicular nerve root paresthesias over the right gluteal area associated with chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as 10 percent disabling; cervical strain with degenerative joint disease associated with chronic low back pain with lumbar degenerative joint disease due to shortening of the right leg, evaluated as noncompensable; and residuals of a zygomatic fracture, evaluated as noncompensable. The combined evaluation beginning August 12, 2003, was 60 percent disabling when employing the bilateral factor for Diagnostic Codes 5255, 5252, and 8520. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran's service connected migraine headache (initially characterized as residuals of head trauma and then subsequently changed to headaches, residual of head injury in a May 2010 rating decision), low back disability, right femur disability, left hip disability, radicular nerve root disability, cervical strain disability, and residuals of zygomatic fracture are all a result of a common etiology. As such, the Board finds that that the Veteran meets the schedular criteria for a TDIU beginning August 12, 2003. See 38 C.F.R. § 4.16, 4.25. The Board additionally finds that he is in fact unemployable by reason of his service-connected disabilities, which are shown to be productive of an overall disability picture manifested by the Veteran being precluded from working at substantially gainful employment consistent with his educational and occupational background. Significantly, the record documents that the Veteran was unemployed in November 2003. VA treatment notes dated in December 2003 show the Veteran had been unemployed for approximately one year. The January 2004 VA examiner indicated the Veteran had been employed by the post office until approximately two years prior. At an examination in May 2005 the Veteran was noted to last be employed with the post office in 2002. A November 2004 VA psychiatrist indicated that he had first examined the Veteran in December 2003 and that it was his opinion that the Veteran had multiple cognitive deficits resultant from a severe head injury sustained 23 years prior, which essentially made it impossible for him to be able to work in gainful employment without a great deal of vocational support at a place of employment. As previously indicated, effective August 12, 2003, the Veteran meets the schedular criteria for assignment of a TDIU as the service connected disabilities at that time were the result of a common etiology (motor vehicle accident) and had a combined evaluation of 60 percent disabling. While there is some confusion in the record as to the exact date the Veteran stopped working at the USPS, 2001 or 2002, the Veteran was clearly unemployed on August 12, 2003, when the schedular criteria was met. The November 2004 psychologist opined the Veteran's cognitive disabilities made it impossible for him to be able to work in gainful employment without a great deal of vocational support at a place of employment. The Veteran had been in receipt of service connected benefits for residuals of a head injury, subsequently recharacterized as migraine headaches, residuals of a head injury, since at least August 12, 2003. Hence, it is reasonable to assume that his service-connected disabilities were productive of an overall disability picture manifested by the Veteran being precluded from working at substantially gainful employment consistent with his educational and occupational background as of August 12, 2003. Whether TDIU is warranted on an extraschedular basis prior to August 12, 2003, as the Veteran failed to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) until this date, is addressed in the Remand portion below. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In sum, the Board finds the evidence shows that a TDIU rating by reason of service-connected disabilities is warranted from August 12, 2003. 38 C.F.R. § 3.102. ORDER TDIU is granted, for the period beginning August 12, 2003, subject to the laws governing the payment of monetary benefits. REMAND As noted in the Introduction, in April 2013, the Board awarded TDIU for the period beginning December 4, 2003. The Board remanded the matter of entitlement to TDIU prior to August 12, 2003, on an extraschedular basis. Notably, the Board determined that the Veteran did not meet the schedular criteria for a TDIU prior to August 12, 2003 (nor does he currently), and found that it was necessary to remand the claim for TDIU based upon extraschedular consideration and referral to the Under Secretary for Benefits or the Director of Compensation and Pension Services. The claim was not referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services. The RO instead issued a memorandum denying entitlement to TDIU on an extra-schedular basis. As the Board has granted entitlement to TDIU for the period beginning August 12, 2003, and since the Veteran still does not meet the schedular criteria for TDIU prior to August 12, 2003, the Board finds it necessary to remand the matter for consideration of TDIU on an extraschedular basis. In VA Form 21-8940, Application for Increased compensation Based on Unemployability, received in May 2013, the Veteran indicated that he last worked full-time at the United States Postal Service (USPS) in December 2001. It is still unclear from a review of the claims file when the Veteran last worked for the post office as medical records show he remained employed in 2002. On remand, the RO must request verification of employment, to include dates of service and reasons for leaving, directly from the USPS. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain the necessary release forms to request employment information from the USPS. Take all appropriate action to ascertain from the USPS when the Veteran ceased employment and for what reason. 2. Thereafter, refer the Veteran's claim of entitlement to a TDIU prior to August 12, 2003, to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis. 3. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs