Citation Nr: 1753718 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-15 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities prior to September 7, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This matter was previously before the Board in June 2011 at which time it was remanded for additional development. A March 2012 rating decision granted entitlement to a 100 percent rating for loss of use of both feet due to atypical ALS, effective September 7, 2011; granted entitlement to a 100 percent rating for generalized anxiety disorder, effective September 22, 2011; and, granted entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(l), (o) (2012) and 38 C.F.R. § 3.350(b), (e), (h) (2017), effective September 7, 2011. A claim of entitlement to a TDIU was rendered moot from September 7, 2011, as a TDIU award would not result in a higher benefit to the Veteran. However, the issue of entitlement to a TDIU for the period prior to September 7, 2011 remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In June 2102, the Board remanded the issue of entitlement to a TDIU prior to September 7, 2011 for additional development. A review of the record shows there has been substantial compliance with the prior remand directives; thus additional development is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The evidence shows that the Veteran was not precluded from securing or maintaining a substantially gainful occupation due to his service-connected generalized anxiety disorder prior to September 7, 2011. CONCLUSION OF LAW The criteria for the award of a TDIU prior to September 7, 2011 have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Accordingly, the Board will address the merits of the claim. Entitlement to a TDIU Prior to September 7, 2011 The Veteran seeks entitlement to a TDIU prior to September 7, 2011. He reported on his VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in August 2007, that he has not been able to work since 1999 due to his service-connected anxiety disorder. A TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. A TDIU may be granted under 38 C.F.R. § 4.16(a) if he meets certain schedular rating requirements, or on an extraschedular basis under § 4.16(b), even if he does not, so long as he is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities. The extraschedular subsection of § 4.16 explains that it is the established VA policy 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection (a). The rating board will 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. 38 C.F.R. § 4.16(b). From October 1, 1973, the Veteran's sole service-connected disability - generalized anxiety disorder - was rated 30 percent disabling, and from November 27, 2006 to September 6, 2011 it was rated 50 percent disabling. As addressed in the Introduction, the issue of entitlement to a TDIU beginning September 7, 2011 has been rendered moot due to the award of benefits to the Veteran effective September 7, 2011. Thus, the issue before the Board is entitlement to a TDIU prior to September 7, 2011. As stated above, the Veteran's original claim for entitlement to a TDIU was received in August 2007. In the June 2012 Board remand, the Board acknowledged that the Veteran did not meet the schedular percentage requirements for a TDIU prior to September 7, 2011. Therefore, the Board remanded the matter to obtain an opinion as to whether or not the Veteran's anxiety disorder precluded him from following a substantially gainful occupation for any period from November 27, 2006 (the date of receipt of the Veteran's increased rating claim) to September 6, 2011. Thereafter, the Board directed that the claim should be submitted to the Director of Compensation and Pension Service (C&P) for consideration of the Veteran's entitlement to a TDIU on an extraschedular basis for this time period. In July 2014, the Veteran's complete file was reviewed by a VA psychiatrist. The examiner opined that after an "exhaustive review" of the Veteran's medical records, claims file, and electronic file, it was her opinion that the Veteran was able to obtain, perform and secure a financial gainful employment during the period from November 27, 2006 to September 6, 2011. The examiner stated that the Veteran's service-connected neuropsychiatric condition during that period was not severe enough to render him unemployable. In December 2014, a determination was received from the Director of Compensation and Pension which found that the Veteran was not entitled to a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b) prior to September 7, 2011. The Director noted that prior to September 7, 2011 the Veteran's total combined disability evaluation for his service connected generalized anxiety disorder was 50 percent, effective November 27, 2006. The Director noted that a VA examination conducted in December 2006 revealed that the Veteran had retired from the Department of Corrections in 1998 due to "eligibility by age or duration of work." The December 2006 VA examiner also documented that the Veteran exhibited no reduced reliability and productivity due to his mental disorder symptoms; had no occasional decrease in work efficiency and no intermittent periods of inability to perform occupational tasks due to his mental disorder symptoms. The VA examiner additionally noted that the Veteran did not exhibit mental disorder symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Based on the foregoing, the Director determined that entitlement to a TDIU on an extraschedular basis for the period prior to September 7, 2011 was not warranted. The Director stated that the medical evidence did not show that the Veteran would have been unemployable in all environments, including a sedentary one, due solely to his service-connected disability. Thus, having carefully considered the evidence of record, the Board finds that the Veteran does not meet the extraschedular criteria for a TDIU prior to September 7, 2011 as the evidence shows that the Veteran was capable of obtaining and maintaining gainful, sedentary employment during that time period. ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disabilities, prior to September 7, 2011 is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs