Citation Nr: 1756784 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-14 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability from May 1, 2007 through December 12, 2007. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to April 1971. This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2017 videoconference hearing before the undersigned. The Board notes that while this claim was originally framed as claim for entitlement to an earlier effective date for TDIU, the Veteran clarified that he was seeking a TDIU for a specific period of time between two periods of already established TDIU. See April 2017 Board hearing. Thus the issue has been recharacterized as above. FINDING OF FACT The Veteran's service-connected psychiatric disorder has rendered him unable to maintain substantial employment for the entire period under consideration. CONCLUSION OF LAW The criteria are met for a TDIU from May 1, 2007 through December 12, 2007. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340 (2017). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2017). In evaluating total disability, 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 effects of combinations of disability. 38 C.F.R. § 4.15 (2017). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The Veteran during the time period in question was service-connected for anxiety neurosis at 50 percent; as well as post-operative right and left inguinal lipoma, each at 10 percent; with a combined rating of 60 percent. See 38 C.F.R. § 4.25. He therefore does not meet the schedular criteria for a TDIU for the appeal period. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds in this instance that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun v. Peake, 22 Vet. App, 111 (2008), and Anderson v. Shinseki, 22 Vet. App. 423(2009) as well as the Federal Circuit's affirmance of Thun and its decision in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Cf. Evans v. McDonald, No. 11-2917, slip op. at 16 (Vet. App. Dec. 2, 2014) (en banc) (Kasold, J., concurring) ("the standard for referral is identical to the standard for an extraschedular TDIU award"); Anderson, 22 Vet. App. at 432 (Schoelen, J., concurring) ("authorizing the Director of C & P to overrule the Board's findings with respect to the adequacy of the schedular evaluations would frustrate the Board's appellate authority."). There is ample support for this view aside from the decisions mentioned above. See 38 U.S.C. §§ 511(a), 7104(a) ('All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board.'); Disabled Am. Veterans, 327 F.3d 1339 at 1347 ('Together [sections] 511(a) and 7104(a) dictate that the Board acts on behalf of the Secretary in making the ultimate decision on claims and provides 'one review on appeal to the Secretary' of a question 'subject to decision by the Secretary' under [section] 511(a)."); Floyd, 9 Vet. App. at 100 (Steinberg, J., dissenting) ("whereas the [Under Secretary for Benefits] and the Veterans Benefits Administration have no direct statutory base of adjudicative authority, receiving all authority from the Secretary, the BVA, as the Secretary's delegation clearly recognizes in the emphasized language, has an independent statutory base of authority, which the Secretary has no authority to limit.") (emphasis added); 38 C.F.R. § 19.9(d)(2) ("A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes: Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions."). Moreover, this is a favorable determination that the Board would eventually grant, anyway, such as if the Director disapproved the TDIU for the period in question. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to legal requirements does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case, as such adherence would result in unnecessarily imposing additional burdens on VA with no benefit to the Veteran); Floyd, 9 Vet. App. at 95 (where the BVA had purported to grant an extraschedular rating, the Court stated that a claim for an extraschedular rating must be sent by the BVA to those "officials who possess the delegated authority to assign such a rating in the first instance," but held that the BVA's failure to so refer to such officials constituted harmless error). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunate-and not entirely unfounded-belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."). The question that remains, then, is whether the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. 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, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record reveals that the Veteran already has a TDIU established from August 8, 2008 through May 1, 2007, and then again from December 13, 2007 through present. During the period on appeal, he had a rating of 60 percent. An April 2006 VA examination noted that the Veteran's industrial and social impairment were severe, and at that time he was unable to work. An April 2008 VA psychiatric examiner found that the Veteran's service-connected anxiety and his non-service connected depressive disorder seemed bound together with each affecting the other and without the possibility of determining respective percentages. The examiner found that his level of functioning precluded regular employment consistent with his education and work history. A December 2008 opinion from the Veteran's treating VAMC clinician notes that the Veteran had been under his psychiatric care since May 2003 and in his opinion he was unemployable (100 percent unable to work) and completely disabled in terms of his ability to work, directly because of his service-connected psychiatric illness. The Board finds that it is highly unlikely that the Veteran was capable of substantial employment during a period of approximately 7 months in 2007 when he otherwise was shown to be unable to maintain substantial employment primarily due to his service-connected anxiety both prior May 1, 2007 and after December 13, 2007. The Board finds that the evidence adequately shows that he is unemployable due to his disabilities, and has been for the entire period under consideration. Thus the Veteran now has an established continuous period of TDIU from August 8, 2003 through present. ORDER Entitlement to TDIU from May 1, 2007 through December 12, 2007 is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs