Citation Nr: 1338822 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-43 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extra-schedular basis. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from August 1977 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2011 and January 2013, the Board remanded the claim for additional development. The case has been returned to the Board for further appellate review. FINDING OF FACT The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extra-schedular basis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.16(b) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision below, the Board grants entitlement to a TDIU, and therefore the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. LAW AND ANALYSIS Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his 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. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension (C&P) Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, C&P Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, C&P Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board. Moreover, where there has been a review by the C&P Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet. App. 423, 277-28 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). In determining whether a claimant is unable to secure or follow a substantially gainful occupation, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). That a veteran can no longer perform a particular job, however, is not dispositive of the issue. Rather, the criteria for a TDIU rating contemplate that a veteran's service-connected disabilities alone preclude him from securing or following all forms of substantially gainful employment. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that he is unemployable due to his service-connected disabilities. In particular, he asserts that his left shoulder condition and lumbar spine strain place severe restrictions on lifting, sitting and standing for long periods of time and many other restrictions due to side effects of medication and pain. The Veteran is currently service-connected for lumbar strain, rated as 20 percent disabling; left shoulder bicipital tendinosis rated as 20 percent disabling; fractured 10th rib rated as noncompensably (zero percent) disabling; fracture of the nose also rated as noncompensably disabling; and radiculopathy of the left lower extremity, rated as 20 percent disabling. His combined evaluation for compensation is 50 percent. Therefore, the percentage requirements for consideration of his claim under section 4.16(a) have not been met, and the Board must consider whether this appeal warrants further extra-schedular consideration by the Director, C&P Service, under section 4.16(b). With regard to the latter, the Board notes that a memorandum created by a Decision Review Officer (DRO) at the Appeals Management Center (AMC) in April 2013 and approved by the Chief of Compensation Service in July 2013 reflects consideration of the Veteran's claim for a TDIU on an extraschedular basis. In applying for a TDIU rating, the Veteran contends, in effect, that his service-connected left shoulder and lumbar spine disabilities render him "unable to secure and follow a substantially gainful occupation." 38 C.F.R. § 4.16(b). The record establishes that the Veteran last worked in March 1999, when he was employed as a mechanic. The Veteran reports completing four years of high school with no other training or technical expertise. A July 2007 VA examiner concluded that the Veteran's shoulder and lumbar spine disabilities should not exclude him from being employable. On the other hand, a July 2011 VA examiner concluded that the Veteran's lumbar spine disability would render him unemployable within his current skill set. The Veteran underwent further VA examination in February 2013. With respect to the left shoulder, the examiner determined that the pain in the Veteran's left shoulder was intertwined with a more disabling nonservice-connected cervical spine disability which played a larger role in the symptoms. However, the examiner also stated that the degree of left shoulder symptoms secondary to the tendonitis could not ascertained with certainty without resorting to mere speculation. The examiner felt that the left shoulder disability by itself would affect jobs with above motions with restrictions but that the Veteran could perform other jobs either physical or sedentary consistent with his skill set as a heavy mechanic and his high school education. With respect to the lumbar spine, the examiner concluded that the symptoms were clinically secondary to non service connected lumbar degenerative disc protrusion. The examiner stated that these symptoms play a predominant role in limitation of range of motion of the spine. However, the examiner noted that the symptoms secondary to the lumbar strain alone cannot be clinically ascertained in this picture without resorting to mere speculation. The examiner concluded that in view of the mixed picture and combined disability, jobs with above motions or prolonged sedentary involvement would be affected. The examiner felt that the Veteran's limited education and specific skill set as a heavy machine mechanic limited his employment prospects. As noted previously, an administrative review of the Veteran's claim was conducted in April 2013 by a DRO at the AMC who found that the evidence did not establish entitlement to a total disability evaluation on an extra-schedular basis. The AMC determined that the Veteran had significant occupational impairment due to nonservice-connected disabilities. In July 2013, the Chief of Compensation Services concurred with the AMC's decision. After review of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected left shoulder and lumbar spine disabilities as he is precluded from performing gainful employment for which his education and occupational experience would otherwise qualify him. The record contains competent medical evidence in support of the Veteran's claim. While the February 2013 VA examiner determined that many of the Veteran's current left shoulder and lumbar spine disabilities are intertwined with nonservice-connected disabilities, those symptoms could not be separated. Ultimately, the examiner concluded that the Veteran's mixed symptomatology placed significant restrictions his employment. In this regard, the Board notes that when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board also acknowledges the AMC memorandum (with a concurrence from the Chief of Compensation Service) that the Veteran does not meet the extra-schedular requirements for a TDIU. However, that opinion did not take into account the holding in Mittleider. In this case, the restrictions placed on the Veteran by his left shoulder and lumbar spine disabilities severely limit his employment options, especially with consideration of his background which is limited to a 12th grade education and prior work experience as a heavy machine mechanic. With consideration of all the evidence of record, the Board finds that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. The Board concludes that entitlement to a TDIU on an extra-schedular basis is warranted. ORDER Entitlement to a TDIU on an extra-schedular basis is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs