Citation Nr: 1715326 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 12-22 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for coronary artery disease (CAD) and assigned a 30 percent rating effective from August 27, 2010. The Veteran disagreed with the initial rating and perfected his appeal with regard to that issue by an August 2012 Substantive Appeal (VA Form 9). In a January 2015 decision, the Board denied an initial rating in excess of 30 percent for CAD and referral for extraschedular consideration. That decision additionally noted that the Veteran filed a formal TDIU claim during the pendency of his appeal for an increased rating for his CAD, which was denied in a February 2014 rating decision. Because the appeal period for that rating decision had not yet expired, the Board determined that a TDIU was not part of the increased rating claim on appeal. See January 2015 Board Decision. See also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a June 2016 memorandum decision, the Court affirmed the Board's decision denying an increased disability rating for CAD and referral of the CAD for extraschedular consideration. However, the Court found that the Board erred in finding that the issue of entitlement to a TDIU was not part and parcel of the Veteran's increased rating claim, reversed that portion of the decision, and remanded the TDIU claim to the Board for further action in accordance with its decision. See June 2016 CAVC Memorandum Decision. The case has thus returned to the Board, and the appellate issue is as reflected on the title page. The Board also notes that, in January 2017, the Veteran's attorney submitted additional evidence, along with a waiver of initial RO consideration of the evidence. Accordingly, the Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2016). In this decision, as will be discussed in detail below, the Board grants entitlement to a TDIU from August 31, 2012 forward. The issue of entitlement to a TDIU for the period prior to August 31, 2012 is, however, addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period from August 31, 2012 forward, the manifestations of the Veteran's service-connected disabilities have been sufficiently incapacitating as to result in unemployability. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met from August 31, 2012 forward. 38 U.S.C.A. § 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act of 2000 ("VCAA") sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). As discussed in the introduction above, in this decision, the Board is granting entitlement to a TDIU from August 31, 2012 forward. This award represents a complete grant of the benefits sought on appeal as concerning that aspect of the claim. Therefore, any deficiency in VA's compliance with the duty to notify and assist is nonprejudicial and any further discussion of VA's duties is not necessary. 38 C.F.R. § 20.1102 (2016). II. Analysis A claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice, 22 Vet. App. 447, 453 (2009). As noted, in its June 2016 memorandum decision, the Court determined that a derivative claim for a TDIU was part and parcel of the Veteran's appeal for a higher initial rating for his service-connected CAD. See June 2016 CAVC Memorandum Decision (finding that the adjudication of the Veteran's formal TDIU claim filed during the pendency of his appeal "because appellate jurisdiction [over the intertwined TDIU claim] had already transferred to the Board by virtue of his NOD and Substantive Appeal") (citing Stewart v. McDonald, 641 F. App'x 979 (Fed. Cir. 2016) (holding that the Veteran was not required to file a second NOD addressing irritable bowel syndrome (IBS) because she had already filed an NOD addressing her claim, which included possible IBS) and Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (en banc) (finding that "[o]nce the Board has jurisdiction over a claim, . . . it has the authority to address all issues related to that claim, even those not previously decided by the RO")). Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must give full consideration to "the effect of combinations of disability" under 38 C.F.R. § 4.15, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). As part of this ultimate determination, VA is required to obtain a medical examination or opinion only when "necessary to make a decision on the claim." Id. (citing 38 U.S.C. § 5103A(d)(1)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (such as orthopedic disabilities), will be considered as one disability for TDIU purposes. Id. The Veteran's service-connected disabilities are as follows: CAD status post myocardial infarction and stent, rated as 30 percent disabling from August 27, 2010 forward; posttraumatic stress disorder (PTSD), rated as 50 percent disabling from August 31, 2012 forward; thoracolumbar spine strain, rated as 10 percent disabling from August 31, 2012 forward; diabetes mellitus type II, rated as 10 percent disabling from June 30, 2015 forward; residuals of retained foreign bodies in the right abdominal wall, rated as noncompensable (0 percent disabling) from August 31, 2012 forward; right ear hearing loss, rated as noncompensable from August 31, 2012 forward. His combined disability evaluation is 30 percent from August 27, 2010, and 70 percent from August 31, 2012. See 38 C.F.R. § 4.16(a). See also 38 C.F.R. §§ 4.25 (Combined ratings table) (2016). The record thus reflects that the combined rating for the Veteran's service-connected disabilities has been 70 percent since August 31, 2012. See, e.g., August 2015 Rating Decision Codesheet. See also 38 C.F.R. §§ 4.16(a); 4.25. Moreover, since that time, the Veteran's service-connected PTSD been rated as 50 percent disabling. See 38 C.F.R. § 4.16(a). Accordingly, the threshold minimum schedular requirements for consideration of entitlement to a TDIU have been satisfied since August 31, 2012. The question remains, then, whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities, including specifically his CAD, PTSD, and low back condition, since August 31, 2012. In this regard, the Veteran has reported that he stopped working as an automotive mechanic in November 2009. See, e.g., October 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (reporting that he became too disabled to work in November 2009 and that his last full time employment was as a self-employed auto mechanic in October 2009). Importantly, the ultimate question is not whether the Veteran can actually find employment, but whether, in light of his service-connected disabilities, he is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). And in the instant case, the Board finds that the criteria for entitlement to a TDIU are met from August 31, 2012 forward. Specifically, the Veteran submitted a vocational assessment completed by a private Certified Rehabilitation Counselor (CRC). See December 2016 Vocational Employability Assessment from R.D.G., CRC. Based upon an interview of the Veteran and a review of the evidence of record, including the Veteran's medical history, his educational attainment, and his occupational history, R.D.G. found that the Veteran's service-connected disabilities, including specifically his PTSD, CAD, and thoracolumbar spine disability, are productive of symptomatology and functional limitations that "combine to render him fully incapable of securing and following substantial and gainful employment, to include unskilled, skilled, sedentary or any other demand level of work" throughout the appellate period. See id. As concerning the impact of his service connected disabilities, the vocational expert offered the following opinion: Based on [the Veteran]'s service-connected CAD disability, he is unable to sustain any physical activity and depends on his wife full-time for his care. His specific functional limits include his inability to walk more than 150 feet, to climb/descend stairs, to perform any lifting/carrying/pushing/pulling or rise from a seated position. His functional limits associated with his service-connected thoracolumbar condition impact his ability to sit, stand, weight bear and bend. As a result of [the Veteran]'s service-connected PTSD symptoms, he is unable to maintain his concentration/focus, he has poor memory and his obsessive rituals would impact his ability to sustain work tasks at a production level, to remember work task sequences or to complete work tasks accurately. [The Veteran]'s service-connected PTSD symptoms of depressed mood, disturbance of mood, loss of motivation, anxiety and his inability to deal with a stressful situation would render him unreliable in the work place. His irritability, his anger, his inability to develop and sustain working relationships and his suspiciousness, with obsessional rituals would impact his ability to work with others or respond appropriately to individuals, in authority. See id. The vocational expert further stated that any determinations of the Veteran's medical treatment providers indicating that the Veteran "can engage in work activity" represent medical determinations attempting to "define the physical or emotional limitations extending from a condition." See id. However, such medical providers "have limited expertise" in the vocational arena, and thus lack the appropriate qualifications and experience to translate their medical determinations as to symptomatology and functional limitations into an opinion as to whether the Veteran's degree of restriction and/or limitation prevents him from working. Id. The December 2016 Vocational Employability Assessment from R.D.G., CRC is highly probative as it represents the informed conclusions of an expert in the field, is based on a review of an interview of the Veteran and all pertinent medical and lay evidence of record, and is supported by a clear, well-reasoned explanation with citations to both the evidence of record and relevant vocational treatises. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians' access to a Veteran's medical records). Accordingly, the December 2016 vocational expert's opinion carries significant probative weight in the Board's determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Moreover, there is no medical opinion evidence that directly contradicts the December 2016 vocational expert's opinion. In this regard, the Board notes that the VA examination reports and opinions adduced during the pendency of the relevant period, including those in May 2014 and September 2016, do not explicitly address the Veteran's level of education, prior work experience, or training, and do not take into consideration the combined effect of his service connected disabilities on his ability to obtain or maintain substantially gainful employment. Given the December 2016 vocational expert's opinion that the Veteran's service-connected disabilities are productive of symptomatology and functional limitations that preclude any type of employment, and resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service-connected PTSD, CAD, and thoracolumbar spine disorder are sufficiently incapacitating as to result in unemployability in light of the severity of his disabilities, occupational and educational history, and experience, from August 31, 2012, forward. See 38 C.F.R. § 4.16(a); Geib, 733 F.3d at 1354. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met since August 31, 2012. See 38 C.F.R. § 4.16. See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to TDIU from August 31, 2012 forward is granted, subject to the applicable regulatory provisions governing payment of monetary awards. REMAND As discussed, the Veteran's TDIU claim is part and parcel of his claim for an increased initial rating for CAD. See June 2016 CAVC Memorandum Decision; see also Rice, 22 Vet. App. at 453-54. As discussed above, a TDIU has been established from August 31, 2012, the first date that the Veteran met the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a) (providing that a schedular TDIU may be assigned where the is only one service-connected disability rated as 60 percent or more disabling, or where there are two or more disabilities with at least one disability rated at 40 percent or more disabling and sufficient additional service-connected disability to bring the combined rating to 70 percent or more). However, the earliest possible effective date for the Veteran's TDIU claim is August 27, 2010, the date of his underlying service connection claim. See June 2016 CAVC Memorandum Decision (finding that the issue of entitlement to a TDIU was part of the Veteran's claim for an increased initial rating for his CAD); VA Form 21-526, Veterans Application for Compensation or Pension, dated August 27, 2010 (initiating a claim for service connection for CAD). See also 38 U.S.C.A. § 5110 (West 2014) and 38 C.F.R. § 3.400(o) (2016) (providing that increased ratings shall become effective on the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date[;] otherwise, [the effective date shall be the] date of receipt of claim"); Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Rice, 22 Vet. App. 447 (reflecting that a claim for an increased rating encompasses a claim for TDIU). Accordingly, the issue of entitlement to a TDIU for the period from August 27, 2010, the effective date of the grant of service connection for CAD, to August 30, 2012, remains for consideration. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (reflecting that a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). See, too, January 2017 Correspondence from the Veteran's Attorney (maintaining that the Board "must consider the issue of entitlement to TDIU from August 27, 2010, the date of the original underlying claim" for service connection for CAD). Prior to August 31, 2012, the Veteran's sole service connected disability was his CAD, rated as 30 percent disabling from August 23, 2010 forward. Thus, his combined evaluation prior to August 31, 2012 failed to reach the requisite level required under 38 C.F.R. § 4.16 (a). Nevertheless, 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 (b). 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). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). There is probative evidence of record showing that, when the Veteran's employment history and educational and vocational attainment are taken into account, his service-connected CAD may have rendered him unable to secure or maintain a substantially gainful occupation during the period from August 27, 2010 to August 30, 2012. Specifically, the evidence shows that the Veteran discontinued employment as an automotive mechanic in November 2009 due to his coronary artery disease and its effect on his ability to perform his job. See, e.g., October 2013 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (reporting that he became too disabled to work in November 2009 as a result of his heart condition, and reporting that his last full time employment was as a self-employed auto mechanic in October 2009); October 2016 Affidavit of the Veteran (asserting that he "left work altogether in 2009 as a result of [his] coronary artery disease"; noting that a treating cardiologist told the Veteran that "if [he] wanted to live, [he] would have to give up [his] job"; and stating that he "cannot work to this day because of [his] coronary artery disease and the medications [he] take[s] to control its symptoms"). Moreover, the opinion of his private vocational rehabilitation specialist indicates that, based on the Veteran's occupational and educational history, the CAD alone resulted in the Veteran's unemployment and precluded him from obtaining and maintaining new employment. See December 2016 Vocational Employability Assessment from R.D.G., CRC. Given the evidence suggesting that the Veteran may have been be unable to obtain or maintain substantially gainful activity due to his service-connected CAD in view of his work history and educational and vocational background for the period from August 27, 2010 to August 30, 2012, the RO should refer the issue of entitlement to TDIU during that period to the Director of the Compensation and Pension Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the issue of whether the Veteran is entitled to TDIU on an extraschedular basis for the period from August 27, 2010 to August 30, 2012 to the Director of the Compensation and Pension Service. The claims file and a copy of this REMAND must be provided. 2. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, adjudicate the issue of entitlement to TDIU for the period from August 27, 2010 to August 30, 2012 on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs