Citation Nr: 1704841 Decision Date: 02/16/17 Archive Date: 02/24/17 DOCKET NO. 05-29 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from July 6, 2008. 2. Entitlement to a TDIU due to service-connected disabilities prior to July 6, 2008. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD N. Riley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. He also had periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) as a member of the Naval Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, inter alia, denied the Veteran's claim for a TDIU. The Veteran's appeal was previously before the Board in October 2009, July 2011, and June 2013. Most recently, in May 2016, the Board remanded the issue of a TDIU, prior to June 11, 2009, to the RO via the Appeals Management Center, in Washington, D.C., for further development. The Veteran's VA claims file has now been returned to the Board for further appellate proceedings. The issue of entitlement to a TDIU prior to July 6, 2008 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran's service connected disabilities have rendered him unable to secure and follow substantially gainful employment since July 6, 2008. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU have been met since July 6, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Board has considered the legislation regarding VA's duty to notify and to assist claimants and finds that, given the favorable action taken herein, no further discussion of these VCAA requirements is required. Analysis 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 two or more service-connected disabilities, provided that one of those disabilities is rated 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. § 4.16(a). In this case, prior to June 11, 2009, the Veteran was service-connected for coronary artery disease, evaluated as 30 percent disabling, effective July 6, 2008, and 10 percent disabling, effective December 11, 2006; right hand termor, evaluated as 50 percent disabling effective November 3, 2003; a cervical spine disability evaluated as 10 percent disabling, effective January 2, 2004; bilateral hearing loss, evaluated as noncompensable effective July 27, 2006; a chest scar, evaluated as noncompensable effective December 11, 2006; and a thigh scar, evaluated as noncompensable effective December 11, 2006. From June 11, 2009 to March 1, 2012, the Veteran has a combined 100 percent rating, and from March 1, 2012 to June 5, 2016, his combined rating is 90 percent and he is in receipt of a TDIU. From November 3, 2003 the Veteran's combined rating was 50 percent, 60 percent from January 2, 2004, and 70 percent from July 6, 2008. Therefore, he does meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) from July 6, 2008. The only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from July 6, 2008. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. According to the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked as an electrician from 1979 to 2002. The Veteran reported operating his own business conducting electrical contracting and that it was his right hand tremors and neck disabilities that prevented him from continuing in that business. The June 2016 VA examiner found that the effect of the Veteran's service-connected disabilities on his usual occupation was to limit him to "medium work." The examiner further stated that the Veteran was able to perform work "exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects." The examiner noted the veteran's right hand was his dominate hand and that the Veteran stated that for an electrician's work "you have to have a very steady dominate hand." The Board notes the June 2016 VA examiner found that Veteran would not be precluded from sedentary to medium work type occupational activities. However, opinions of health care professionals are not dispositive in adjudicating TDIU claims; rather, the Board must assess the functional limitations noted by the health care professionals and determine whether they render the Veteran unemployable consistent with the applicable regulations. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Veteran's TDIU claim form and the medical records reflect that he worked as an electrician with 4 years of college. See June 2016 VA Form 21-8940. Moreover, the Veteran has reported problems manipulating objects and completing work tasks due the severity of his right hand tremors. The Board finds his statements competent and credible. Geib, 733 F.3d at 1354 (whether a veteran can perform the physical and mental acts required by employment is an issue about which a lay person may provide competent evidence; "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Given the significant impact of the service connected disability on the Veteran's ability to perform physical tasks that would likely be required for the type of employment for which he would be qualified given his occupational background as an electrician, the evidence is thus at least evenly balanced as to whether the service connected disabilities from July 6, 2008 to June 11, 2009 preclude him from obtaining and maintaining substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from July 6, 2008. 38 U.S.C.A. § 5107(b). As noted above, the Veteran is in receipt of a 100 percent rating from June 11, 2009 to March 1, 2012, and is in receipt of a TDIU from March 1, 2012 to June 5, 2016, after which he is in receipt of a 100 percent rating. Moreover, the Veteran is in receipt of special monthly compensation at the housebound rate from June 11, 2009 to March 1, 2012. It thus appears that a TDIU would be moot from these dates. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In granting TDIU from July 6, 2008, subject to controlling regulations governing the payment of monetary awards, the Board leaves to the RO the implementation of this decision, to include its effective dates. Cf. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.") ORDER Entitlement to a TDIU is granted from July 6, 2008, subject to controlling regulations governing the payment of monetary awards. REMAND As indicated above, the Veteran contends that his service-connected disabilities preclude his ability to continue to work as an electrician. As discussed above, the Board finds that there was evidence that the Veteran's disabilities rendered him unemployable and therefore granted entitlement to a TDIU from July 6, 2008. The Veteran's combined disability rating was 60 percent from January 2, 2004 to July 5, 2008, and 50 percent from November 3, 2003 to January 1, 2004. Therefore, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during this period of time. While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, it must consider whether a remand for referral to VA's Director of Compensation for such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, given the above findings, and the fact that the Veteran appears to have stopped working prior to filing his claim for a TDIU in this case, a remand for such a referral is warranted. Accordingly, the issue of entitlement to a TDIU prior to July 6, 2008 is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to July 6, 2008 to the Director of Compensation Service. 2. After the above development has been completed, adjudicate the issue of entitlement to a TDIU prior to July 6, 2008. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs