Citation Nr: 1335178 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-22 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 17, 1994, pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from November 1971 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in March 2010. A transcript of the hearing is of record. In November 2010, the Board granted the Veteran's claim of entitlement to an effective date earlier than January 27, 1997, for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a), and assigned March 17, 1994, as the appropriate effective date. In November 2010, and again in September 2012, the Board remanded the remaining issue of entitlement to an effective date earlier than March 17, 1994, for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(b) for additional development. Although this claim was previously addressed as a claim for an earlier effective date, the Board notes that in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. Id. In other words, the Court has found that there are no freestanding claims for an earlier effective date. Id. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. Id. The Board acknowledges that this appeal did not develop in the traditional fashion explained in Rudd following the assignment of an effective date for an award of TDIU and a notice of disagreement with the effective date within one year. However, it was previously explained in the Board's November 2010 decision that evidence of unemployability that was submitted in conjunction with the Veteran's claim for entitlement to service connection for residuals of a hysterectomy was considered an informal claim for TDIU under the guiding principles set forth in Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, because it was later established that the original denial of service connection for residuals of a hysterectomy contained clear and unmistakable error, the Veteran was granted service connection and later given an effective date back to January 28, 1987, for this disability in a May 2004 rating decision effectuating an April 2004 Board decision. In October 2004, within one year of this rating decision assigning a new effective date and rating for residuals of a hysterectomy, the Veteran contended that she was entitled to 100 percent rating back to January 28, 1987, rather than the 30 percent rating assigned by the RO for residuals of a hysterectomy. The RO initially adjudicated the claim as entitlement to an earlier effective date for TDIU, and the current appeal ensued. However, given the procedural history explained above, the issue is most appropriately characterized as a claim for meritorious entitlement to TDIU prior to prior to March 17, 1994, under the tenants of Rice as a result of the finding of clear and unmistakable error, rather than as an earlier effective date matter per Rudd. Accordingly, the issue has been revised to account for this distinction. FINDINGS OF FACT 1. Prior to March 17, 1994, the Veteran was only service-connected for residuals of an abdominal hysterectomy, rated as 30 percent disabling, which did not include any secondary psychological manifestations. 2. Prior to March 17, 1994, the Veteran's service-connected residuals of an abdominal hysterectomy did not prevent her from securing or following substantially gainful employment. CONCLUSION OF LAW Prior to March 17, 1994, the criteria for entitlement to TDIU on an extraschedular basis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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. See 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), it was provided that notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran was provided with a sufficient notification letter in April 2006 that also fulfilled the Dingess requirements. With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the TDIU claim has been identified and obtained to the extent possible. The Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration records have been associated with the claims file. The Veteran also submitted lay statements and oral testimony during the March 2010 Board hearing. There is a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). In this case, information was solicited regarding the Veteran's employment history, the impact of her service-connected disabilities, and her belief that she is entitled to TDIU beginning 1987 when she first filed a claim for benefits with VA. Moreover, to the extent that there may have been outstanding evidence material to substantiating the claim, the Board subsequently remanded this case on two occasions in order to obtain additional information and evidence, including providing the Veteran with a VA examination and opinion regarding the effects of her service-connected disabilities on her employment prior to March 17, 1994, as well as to referring the case to the Director of Compensation and Pension for an opinion as to extraschedular entitlement. Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The Board is also satisfied that there has been substantial compliance with the Board's prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). Pursuant to the remands, the VA obtained opinions in March 2011 and April 2011 regarding the effects of her service-connected disabilities on employment. Also, in March 2013, the Director of Compensation and Pension provided a determination as to whether TDIU on an extraschedular basis was warranted prior to March 17, 1994. Thus, there is no Stegall violation in this case, and the Board may proceed to adjudicate the claim for TDIU prior to March 17, 1994, without prejudice to the Veteran. II. Entitlement to TDIU Prior to March 17, 1994 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. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims 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 a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether his or her service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Further, in determining whether the Veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19 (2013). In this case, the Board recognizes that, prior to March 17, 1994, the Veteran was only service-connected for residuals of an abdominal hysterectomy, rated as 30 percent disabling. Thus, she does not meet the schedular criteria for consideration of TDIU under the provisions of 38 C.F.R. § 4.16(a); rather, the Board must consider entitlement on an extraschedular basis under 38 C.F.R. § 4.16(b). It is recognized that the Board may not assign an extraschedular rating in the first instance; however, in this case, the Appeals Management Center (AMC) referred the case to the Director of Compensation and Pension Service. In March 2013, the Director of Compensation and Pension Service denied entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Because the case has been referred to the Director, the Board may now proceed to enter a final appellate decision on extraschedular entitlement. Thus, the Board will adjudicate whether the evidence sufficiently shows that the Veteran is nonetheless "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities," which is essentially the same standard of entitlement set forth under § 4.16(a) for schedular evaluations, so as to warrant an extraschedular TDIU rating under § 4.16(b). See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (recognizing that "the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16"). As stated above, the Veteran's sole service-connected disability prior to March 17, 1994, was residuals of an abdominal hysterectomy. As an initial matter, the Board recognizes that the term "residuals of an abdominal hysterectomy" is a rather ambiguous disability identifier. In its September 2012 remand, the Board pointed out that a March 2011 VA psychological examiner concluded that the Veteran's psychiatric disorder can reasonably be termed a residual of her abdominal hysterectomy. Therefore, in the September 2012 remand, it was explained: While service connection was not yet in effect for PTSD prior to March 17, 1994, as a secondary condition to the Veteran's service-connected abdominal hysterectomy; the Board, in its November 2010 remand, specifically sought a medical opinion speaking to the extent that the Veteran's occupational impairment has been a manifestation of her service-connected residuals of an abdominal hysterectomy. To be clear, while a separate disability rating was not in effect for any psychiatric disorder prior to March 17, 1994, the evidence of record clearly indicates that the residuals of the Veteran's service-connected abdominal hysterectomy have included psychiatric components prior to March 17, 1994. However, the Board is not bound by the initial conclusions made in the September 2012 remand because "a remand by the Board is a preliminary order and does not constitute a final Board decision." See 38 C.F.R. § 20.1100(b) (2013). Notwithstanding, the Board will attempt to address its September 2012 interpretation of "residuals of a hysterectomy" and explain why a different conclusion is now necessary. First, as explained above, the March 2011 examiner liberally interpreted "residuals of a hysterectomy" to include psychological, not just physical manifestations. Nevertheless, the examiner's medical conclusion that there are psychological manifestations secondary to the service-connected hysterectomy is a separate question from the legal inquiry of whether service-connection was established for psychological manifestations prior to March 17, 1994. There is no dispute here that the Veteran has a psychiatric disability as a result of her hysterectomy; she was separately awarded service connection for a psychiatric disorder, which was later rated as posttraumatic stress disorder (PTSD), as secondary to her service-connected residuals of a hysterectomy. However, the effective date assigned for the establishment service connection for a psychiatric disorder is March 17, 1994. After carefully reviewing the claims file and the complex procedural history of this case, the Board must now conclude that, prior to March 17, 1994, the Veteran's service-connected residuals of an abdominal hysterectomy did not encompass any secondary psychological manifestations. Significantly, the Board is bound by the determinations made in a prior final Board decision regarding this Veteran's disability in question. See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (res judicata "requires that there be only one valid decision on any issue or claim"); Bissonette v. Principi, 18 Vet. App. 105, 110 (2004) (collateral estoppel or issue preclusion may prevent relitigation of an issue of fact or law already decided); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (principle of collateral estoppel, or issue preclusion, is applicable to decisions within VA and forbids "relitigating the same issue based upon the same evidence"); see also 38 C.F.R. § 20.1303 (2013) ("Board decisions will be considered binding only with regard to the specific case decided."). In this case, the issue of whether residuals of an abdominal hysterectomy included psychological manifestations prior to March 17, 1994, was previously addressed in a final Board decision. Namely, in an unappealed April 1998 Board decision, it was expressly determined that "[t]he residuals of a hysterectomy only include the removal of the uterus," and that "[t]he effective date for the grant of service connection for a psychiatric disorder is March 17, 1994, the date of the [V]eteran's claim for that benefit." (Emphasis added). Significantly, an earlier effective date for service connection for a psychiatric disorder was denied in the unappealed April 1998 Board decision. In view of this procedural history, secondary service-connection for a psychological disability is first established effective March 17, 1994, and cannot be considered part of the service-connected residuals of an abdominal hysterectomy prior to that time. Therefore, the Board now finds that prior to March 17, 1994, the Veteran was only service-connected for residuals of an abdominal hysterectomy, rated as 30 percent disabling under Diagnostic Code 7618 for the removal of the uterus, and that this disability does not encompass any secondary psychological manifestations for which service connection was later established effective March 17, 1994. Therefore, the pertinent inquiry here is whether the Veteran's residuals of a hysterectomy, not including any later service-connected psychiatric disability, prevented her from securing or following substantially gainful employment prior to March 17, 1994. The Board acknowledges that there is evidence that the Veteran was not working prior to March 17, 1994. For example, the Veteran reported in September 1992 that she last worked in May 1990 and that she did not anticipate working in the future. In support of her contentions, she submitted an August 1991 letter from a nurse practitioner noting that she had to quit her job and an August 1991 letter from a VA physician indicating that she is "unable to function in a daily job." The Board notes that psychological symptoms and stress were frequently cited in conjunction with the reason that she was not working, but as explained above, her psychiatric disability was not a service-connected disability prior to March 17, 1994. See, e.g., October 1991 Social Security determination (finding the Veteran disabled beginning May 1990 due to severe major depression and PTSD). Thus, her non-service-connected psychiatric disability may not be considered when assessing her entitlement to TDIU prior to March 17, 1994. 38 C.F.R. § 4.19; see also Hatlestad, 5 Vet. App. at 529. The Board acknowledges a November 1990 letter by a VA physician explaining that the Veteran "is currently disabled to work secondary to a combination of physical and mental health problems." However, this opinion does not identify what physical problems contributed to such disability and it also explains that it was felt that "this will be a temporary problem for the next 4 to 6 months." Accordingly, the Board finds the opinion to be of little probative value as to the question of whether the Veteran's service-connected residuals of a hysterectomy rendered her unable to obtain or sustain a substantially gainful occupation prior to March 17, 1994. Because the central inquiry in determining entitlement to TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability-and because it was unclear in this case as to whether her sole service-connected disability prior to March 17, 1994, residuals of an abdominal hysterectomy, rendered her unable to secure and follow a substantially gainful occupation-the Board remanded this appeal in order to obtain a VA retrospective medical opinion. As explained above, initially a March 2011 VA examiner determined that the Veteran's psychiatric disorder could be reasonably termed a residual of her abdominal hysterectomy. The examiner then determined that this disability, including the psychiatric manifestations, caused an inability to maintain substantial gainful employment from May 1990 through and following March 17, 1994. However, the opinion improperly considered the impact of the Veteran's psychological disability during this time period (see 38 C.F.R. § 4.19; see also Hatlestad, 5 Vet. App. at 529), which according to a final April 1998 Board decision was determined to be excluded from her service-connected residuals of an abdominal hysterectomy and was not a service-connected condition until May 17, 1994. Accordingly, the Board finds the March 2011 opinion to be without probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Another VA opinion was provided in April 2011, and that examiner reviewed the claims file and acknowledged that the Veteran had numerous emotional responses to her hysterectomy. Significantly, however, the April 2011 examiner did not consider her psychiatric issues in rendering an opinion (the April 2011 examiner deferred on addressing the psychiatric issues). When considering the abdominal hysterectomy alone, the examiner stated that evidence could not be found to establish that "the physical result of the abdominal hysterectomy rendered her unable to secure or follow a substantially gainful occupation prior to March 17, 1994." In rendering this opinion, the examiner described the history of the hysterectomy performed in July 1978 and discussed the final pathology report, "which failed to reveal a recurrence of her endometrial hyperplasia and revealed only persistent proliferative endometrium, as well as chronic cervicitis." Read as a whole, this negative medical opinion is supported by an adequate rationale. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (holding that medical examination reports "must be read as a whole"); Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that the Court must review an examination report "as a whole" to determine whether the Board clearly erred in assessing the adequacy of the report). Consequently, the Board assigns greater probative value to the April 2011 VA examiner's opinion, which is not contradicted by any other probative evidence of record and which does not improperly consider the effects of the nonservice-connected psychiatric disability prior to March 17, 1994. Further, the Director of Compensation and Pension also determined that TDIU prior to March 17, 1994, was not warranted. In the March 2013 administrative review, it was explained that "[t]here is no evidence of uncommon complications of the hysterectomy, and a VA examiner opined that the physical result of the hysterectomy would not cause unemployability." Therefore, it was concluded that the "totality of the evidence does not show that the Veteran would be unemployable solely due to her service-connected disability." The Director also explained that "[e]vidence showing that there may have been a psychiatric disability as a result of the veteran's hysterectomy prior to March 17, 1994, does not change the fact that the Veteran was not service-connected for a psychiatric disability prior to that date. . . . a non-service connected psychiatric disability cannot be taken into consideration for TDIU, only service-connected disabilities c an be considered." While the Board is not bound by these findings, the Board agrees with the overall assessment of the evidence. In this case, the most probative and competent evidence of record (the April 2011 VA opinion) simply weighs against a finding that the Veteran's sole service-connected disability rendered her unable to secure and maintain substantially gainful occupation prior to March 17, 1994. The Board has fully considered the Veteran's lay statements, as well as those submitted by her family members, regarding the profound effects that the hysterectomy had on her life and how it changed her attitude and outlook. The Board is extremely sympathetic and does not doubt the substantial impacts described. However, the Board is bound by the applicable law and regulations, and is unable to provide a legal remedy that conflicts with the legal requirements set forth under the law. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'")). Although the Veteran's representative argued that the Director of Compensation and Pension reads the regulation too narrowly, 38 C.F.R. § 4.16 clearly requires an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities" as a requirement for entitlement to TDIU. To authorize TDIU based on a disability that is not service-connected during the applicable period would run contrary to the plain language of the regulation. Because the Veteran's only service-connected disability prior to March 17, 1994, included non-psychiatric residuals of an abdominal hysterectomy, and the most probative evidence establishes that this disability alone did not preclude the obtainment and following of a substantially gainful occupation, the Board finds that the claim for TDIU prior to March 17, 1994, must be denied. ORDER Entitlement to TDIU prior to March 17, 1994, pursuant to 38 C.F.R. § 4.16(b) is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs