Citation Nr: 1618968 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 10-08 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1972 to October 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2012, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. This matter was remanded in August 2012 for readjudication following assignment of disability ratings and effective dates for those claims adjudicated in the Board's separate August 2012 decision. The RO's January 2013 rating decision implementing the Board's August 2012 decision resulted in the Veteran receiving a 100 percent combined schedular evaluation effective November 1, 1995. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the U.S. Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has already been granted. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. See also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) (holding that if a TDIU rating is to satisfy the "rated as total" element of section 1114(s), the TDIU rating must be based upon a single disability). The Court also ruled that the definition of a "single disability" for purposes of establishing TDIU under 38 C.F.R. § 4.16(a) may not be used to predicate an award of SMC. As the Board assumes the Veteran is seeking the maximum benefit, and an award of TDIU based on one service-connected disability might result in an award of SMC, the Board has reframed the issue on the title page accordingly without limitation to the time period prior to June 3, 2009. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Here, the Veteran's combined schedular evaluation is 100 percent from November 1, 1995 (the day following release from service) to the present. The Veteran is service connected for the following disabilities: migraine headaches (rated as 50 percent disabling), degenerative joint disease of the thoracolumbar spine (rated as 40 percent disabling), chronic prostatis and urethral (rated as 40 percent disabling), residuals of Morton's neuromas, right foot status post right foot surgery (rated as 30 percent disabling), residuals of cervical spine injury with degenerative joint disease (rated as 20 percent disabling), right hip arthritis (rated as 10 percent disabling), left hand muscle pain (rated as 10 percent disabling), right hand pain (rated as 10 percent disabling), vertigo associated with Meniere's disease (rated as 10 percent disabling), sinusitis (rated as 10 percent disabling), thoracolumbar radiculopathy, left lower extremity (rated as 10 percent disabling), sarcoidosis (rated as noncompensable), and hypertension (rated as noncompensable), as of November 1, 1995. The Veteran is also service connected for the following disabilities: impotence (rated as noncompensable, as of May 17, 1999), tinnitus associated with Meniere's disease (rated as 10 percent disabling, as of June 10, 1999), diverticulosis and irritable bowel syndrome (rated as 30 percent disabling, as of December 15, 2006), obstructive sleep apnea (rated as 50 percent disabling, as of February 11, 2009), and residuals of Morton's neuromas, left foot (rated as 30 percent disabling, as of June 3, 2009). The Veteran has reported that he worked briefly in a furniture manufacturing company before joining the Army in the early 1970s. He served in the Army from 1972 to 1995, including as a criminal investigator the last few years, and has not worked since. In December 2000, the Social Security Administration (SSA) awarded disability benefits for the Veteran's impairments of vertigo, migraines, sarcoidosis, and low back pain. The SSA found the Veteran's assertions regarding his inability to work credible, and found that he was unable to perform the requirements of his past work or make adjustments to any obtainable work. In an August 2006 statement, the Veteran reported that he was incapacitated during his headaches as he had blurred vision, nausea, and vomiting, and the light hurt his eyes. In his May 2010 Substantive Appeal, the Veteran contended that he was entitled to a TDIU because his migraine headaches prevented him from working as he needed to take medication and seek out a dark room to recover from migraine attacks. He reported that he was unable to work inside or outside of his home when he had a migraine and that he was essentially bedridden. In August 2006 and May 2010, the Veteran also reported that his Meniere's disease caused dizziness, nausea, tinnitus, and balance and gait problems, and that he was unable to drive and often bedridden for 24 hours at a time. In May 2010, the Veteran also contended that his bilateral Morton's neuromas caused unemployability. The Veteran cited an April 1997 assessment by Dr. Renner noting he had chronic bilateral foot pain status post partial removal of Morton's neuromas, and that he was unable to walk on his toes and heels due to pain. The Veteran also cited a November 2006 evaluation from Dr. Bash opining that the Veteran's bilateral foot condition rendered him unemployable as he was unable to walk, stand, or climb stairs due to foot pain. In a May 2010 letter, Dr. Rantz opined that the Veteran could not hold gainful employment as a result of his disabilities. Dr. Rantz noted that the Veteran's migraines interfered with his ability to work as they left the Veteran physically and emotionally exhausted, incapacitated during an attack, bedridden, and with blurred vision, nausea, vomiting, and light sensitivity. Dr. Rantz noted that the Veteran's Meniere's disease caused attacks that lasted days, weeks, or months, with dizziness, nausea, tinnitus, and balance and gait problems. The Veteran was unable to drive and was often bedridden for 24 hours at a time. The July 2011 VA examiner opined that the Veteran's migraine headaches precluded him from securing gainful employment. The examiner explained that most of the Veteran's headaches were prostrating in nature and incapacitating. The examiner further explained that the Veteran was on potent narcotic pain medications for management of his pain and that preventative therapy had failed due to intolerable side effects. During the January 2012 Board hearing, the Veteran testified that his Meniere's disease (not a service connected disability) left him unable to work as he was bedridden during attacks with spinning sensations. Tr., p. 4. As there is evidence to suggest that the Veteran may be unable to secure and follow a substantially gainful occupation by reason of one of his service-connected disabilities, submission of the issue of entitlement to TDIU to the Director of Compensation for extraschedular consideration is warranted pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to TDIU to VA's Director of Compensation and Pension Services or the Under Secretary for Benefits for extraschedular consideration under 38 C.F.R. § 4.16(b). The Director should consider whether any one of the Veteran's service-connected disabilities individually renders him unable to secure and follow a substantially gainful occupation. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).