Citation Nr: 1756967 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-27 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU), prior to June 29, 2010, on an extraschedular basis. 2. Entitlement to a rating in excess of 50 percent for chronic headaches, on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2014, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. In a January 2015 rating decision, in accordance with the Board's November 2014 decision, the RO granted an earlier effective date of June 20, 2010 for the grant of TDIU, and an increased rating of 50 percent for chronic headaches, effective April 2, 2009. The issues of an earlier effective date for the grant of TDIU and an increased rating for chronic headaches remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Chronic Headaches The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a decision, Johnson v. McDonald, in which they rejected VA's interpretation that 38 C.F.R. 3.321 (b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014). In Johnson, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) is warranted. The Veteran's current 50 percent rating for his service-connected chronic headaches, assigned in the Board's November 2014 decision, is the maximum rating allowable under Diagnostic Code 8100, and there are no other relevant codes under which to evaluate the Veteran's headaches. However, he has argued that his headache symptoms are not contemplated in the rating criteria of Diagnostic Code 8100, in that they cause him to be unemployable. The Board notes that the Veteran is service-connected for major depressive disorder, chronic headaches, right thigh impairment, right thigh scar and right iliac crest, for a combined disability rating of 80 percent from June 29, 2010 and 90 percent from November 9, 2012. Furthermore, during a June 2009 VA examination, the Veteran reported that he was unable to perform activities of daily living during the prostrating headaches that caused significant effects on his usual occupation and daily activities, including absenteeism. Similarly, August 2012 and May 2013 VA examiners noted that his headaches result in a negative impact on his ability to work due to poor attendance. Accordingly, in light of Johnson, in the November 2014 remand, the Board directed that the issue of entitlement to an extraschedular rating for chronic headaches, alone, or due to the combined effect of all the Veteran's service-connected disabilities be adjudicated in the first instance by the RO. In March 2015, the RO issued a supplemental statement of the case (SSOC), addressing only the issue of entitlement to a TDIU prior to June 29, 2010. Although a Decision Review Officer (DRO) memorandum was issued in January 2016, directing the RO to adjudicate the issue of entitlement to an extraschedular rating for chronic headaches, to date, an SOC addressing this issue has not been issued. Thus, the Board finds that the November 2014 remand directives have not been complied with. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App 268 (1998). TDIU Prior to June 29, 2010 The Veteran maintains that he is entitled to an effective date prior to June 29, 2010, for the assignment of a TDIU. TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his or her education and occupational experience would otherwise qualify him or her. 38 C.F.R. § 4.16 (2017). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2017) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). 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). As noted above, the Veteran is currently service-connected for major depressive disorder, chronic headaches, right thigh impairment, right thigh scar and right iliac crest, for a combined disability rating of 80 percent from June 29, 2010 and 90 percent from November 9, 2012. As such, he does not meet the percentage requirements for TDIU under 38 C.F.R. § 4.16 (a) prior to June 29, 2010. However, there is evidence suggesting that he was unable to secure or follow a substantially gainful occupation, due at least in part to his service-connected disabilities, prior to June 29, 2010. Specifically, an October 2000 evaluation by a private clinical and forensic psychologist indicates that the Veteran had been treated from September 2000 to October 2000, and that he was suffering from symptoms of impulse control subsequent to suspiciousness and distrustfulness, which all appeared to be a product of his work environment. It was also noted that he was considered incapacitated to perform work duties. He was diagnosed at that time with an impulse control disorder and paranoid personality disorder. May 2000 private treatment records indicate that in May 2000, he complained of headaches every other day, as well as other orthopedic problems, following a motor vehicle accident in April 2000, and reported that he was unable to work. August 2000 private treatment records indicate that the Veteran reported anxiety and anger problems and indicated that he was unable to work at the post office. September 2000 records show that he reported a great deal of stress at work. During a July 2003 VA examination, the Veteran reported that he had retired from the post office three years earlier, due to a mental condition. May 2009 VA outpatient treatment records from the Fort Worth Outpatient Center (OPC) show that he reported quitting his job, apparently due to feelings of depression and agitation, as well as a history of uncontrolled anger outbursts. In addition, as noted above, during a June 2009 VA examination, the Veteran reported that he was unable to perform activities of daily living during the prostrating headaches that caused significant effects on his usual occupation and daily activities, including absenteeism. A TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16 (b), but the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA's Director of Compensation Service for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, based on the evidence suggesting that the Veteran was unable to secure or follow a substantially gainful occupation, due at least in part to his service-connected disabilities, prior to June 29, 2010, the Board finds that a remand is appropriate so that the issue of entitlement to TDIU can be referred to the Director of VA's Compensation and Pension Service or the Under Secretary for Benefits, for consideration, in accordance with both 38 C.F.R. § 3.321 (b) (2017) and 38 C.F.R. § 4.16 (b) (2017). The appellant is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, the Veteran and his representative should be provided an SOC on the issue of entitlement to an extraschedular rating for chronic headaches. They should also be informed of the requirements to perfect an appeal with respect to this issue. 3. If the Veteran does not meet the percentage requirements for TDIU, the claim should be referred to the Director of VA's Compensation and Pension Service for consideration of entitlement to TDIU, prior to June 29, 2010, in accordance with 38 C.F.R. § 4.16(b) (2017). 4. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the issue of entitlement to a TDIU, prior to June 29, 2010, on an extraschedular basis. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review. The appellant 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). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2017).