Citation Nr: 1630576 Decision Date: 08/01/16 Archive Date: 08/11/16 DOCKET NO. 10-15 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis. 2. Entitlement to a TDIU on an extraschedular basis. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This matter was previously before the Board in May 2013, at which time it was remanded for further development. It is now returned to the Board. The Veteran provided testimony at an August 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a TDIU on an extraschedular basis is addressed in the REMAND section and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The combined disability rating for the Veteran's service-connected disorders is 60 percent; he does not meet the schedular criteria for TDIU. 2. There is competent evidence of record that the Veteran's service-connected disorders render him unemployable, which warrants referral of his claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an award of TDIU on a schedular basis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2015). 2. The criteria for referral to the Director of Compensation Service for extraschedular consideration of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.16(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the Veteran was provided with 38 U.S.C.A. § 5103(a)-compliant notice in May 2007 with regard to an underlying increased rating claim. In any event, any notice or assistance deificnecies are harmless, as on the undisputed facts in the record the Veteran is not entitled to a TDIU on a schedular bassis, as a matter of law, and as the Board is granting referral of TDIU for extraschedular consideration. II. Analysis 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 (2015). 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. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2015). A TDIU 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 C.F.R. §§ 3.340, 3.341, 4.16(a) (2015). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b) (2015). A. Schedular basis In this case, the Veteran is service-connected for pes planus, rated 50 percent disabling and residuals of a fractured right fifth finger, rated 10 percent disabling. The combined rating is 60 percent. The Veteran does not meet the percentage criteria for consideration for TDIU under 38 C.F.R. § 4.16(a). 38 C.F.R. §§ 4.26 (2015). In light of the above, the Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.102. B. Extraschedular basis In considering whether TDIU pursuant to 38 C.F.R. § 4.16(b) may be granted, 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 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant 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. The ultimate question is whether a 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). At his VA examinations and at the August 2012 hearing, the Veteran testified that he had taken a disability retirement from his last employment. He indicated that his work limitations included problems with his feet and difficulty gripping or carrying things with his right hand. In a February 2015 VA examination report for the hand and fingers, the examiner opined that the regardless of the Veteran's current employment, the hand disability did not impact his ability to perform any type of occupational task. In a February 2016 addendum, the examiner stated that the Veteran's service-connected hand condition did not affect his ability to obtain and maintain gainful employment. It was noted that although the Veteran may not be able to work as a contractor or as an arborist, he was also currently 78 years old and carried a diagnosis list that was consistent with this age. The examiner found that his hand condition would not impede in his ability to obtain and maintain other gainful employment. In a January 2016 VA examination report for foot conditions, the examiner opined that regardless of the Veteran's ccurent employment status, his bilateral flat foot did impact his ability to perform any type of occupational task. It was noted that the Veteran could not stand for long periods of time. In this case, the Board finds the determinations by the VA examiners are plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation because of a service-connected disability. Accordingly, the Board finds that the criteria for referral of the claim for extraschedular consideration of a TDIU rating have been met. To this extent, the claim is granted. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). Consequently, this matter requires additional VA action. ORDER Entitlement to a TDIU on a schedular basis is denied. Entitlement to referral of a TDIU for extraschedular consideration is granted; to this extent only, the appeal is granted. REMAND As noted above, although the Board may determine whether referral for extraschedular consideration is warranted, the Board may not assign an extraschedular evaluation in the first instance. Consequently, the Board will remand the case for the AOJ to refer the matter to the Director of Compensation Service for consideration of assignment of an extraschedular evaluation. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ shall refer the case to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities in accordance with the provisions of 38 C.F.R. § 4.16(b). The rating board should include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 2. The AOJ should then prepare a new rating decision and readjudicate the issue of entitlement to a TDIU on an extraschedular basis. If the benefit sought on appeal is not granted in full the AOJ must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. 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 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 2014). _________________________________________________ Thomas H. O'Shay 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). Department of Veterans Affairs