Citation Nr: 1757742 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 11-22 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to March 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision issued by the RO. In May 2012, the Board remanded a claim of entitlement to a higher initial rating for posttraumatic stress disorder in order to provide the Veteran with a requested Board hearing. In February 2013, the Veteran and his spouse testified at a hearing held before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. During that hearing, the Veteran addressed his belief that his post-traumatic stress disorder warranted a rating higher than 50 percent, and that his service-connected disorders warranted entitlement to a total disability rating based on individual unemployability. In February 2014, the Board denied entitlement to an increased rating for posttraumatic stress disorder and remanded the claim of entitlement to individual unemployability benefits. In a March 2015 rating decision the Veteran was granted a combined 100 percent evaluation since January 30, 2015, with a grant of special monthly compensation pursuant to 38 U.S.C. § 1114(s)(1) effective the same date. This record in this matter consists solely of electronic claims files and has been reviewed. The issue of entitlement to a total disability rating based on individual unemployability for the period from August 11, 2014 to September 2, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Since October 21, 2008 the appellant has been service connected, in pertinent part, for coronary artery disease, and since December 1, 2008 he has been considered disabled by the Social Security Administration primarily for heart related concerns. 2. The issue of entitlement to a total disability rating based on individual unemployability was raised by the Veteran during his February 2013 hearing. 3. For the period from August 30, 2013 to August 10, 2014, the Veteran was service connected for coronary artery disease, rated as 60 percent disabling, post-traumatic stress disorder, rated as 50 percent disabling, and tinnitus for rated at 10 percent disabling. His combined rating for this period was 80 percent. 4. During the period from August 11, 2014 to September 2, 2014, the Veteran was service connected for coronary artery disease, rated as 10 percent disabling, post-traumatic stress disorder, rated as 50 percent disabling, and for tinnitus rated at 10 percent disabling. His combined rating for this period was 60 percent. 5. During the period from September 3, 2014 to January 29, 2015, the Veteran was service connected for coronary artery disease, rated at 60 percent disabling, post-traumatic stress disorder, rated as 50 percent disabling, and tinnitus, rated at 10 percent disabling. His combined overall rating for the entire period was 70 percent disabling. 6. As of August 30, 2013, the evidence of record reflects that the Veteran was unemployable due to his service-connected disabilities. 7. Since January 30, 2015 the Veteran has been rated as 100 percent disabled and is in receipt of special monthly compensation. CONCLUSIONS OF LAW 1. For the period from August 30, 2013 to August 10, 2014, the criteria for entitlement to a total rating for individual unemployability were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). 2. For the period from September 3, 2014 to January 29, 2015, the criteria for entitlement to a total rating for individual unemployability were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). Laws and regulations The law provides that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for individual unemployability because under certain circumstances additional service connected disorders may independently warrant a total disability evaluation based on individual unemployability. Under such a fact pattern that veteran may be entitled to special monthly compensation at the rate set forth at 38 U.S.C. § 1114(s)(1). Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). As noted in the introduction, however, special monthly compensation has been granted under 38 U.S.C. § 1114 (s)(1) effective January 30, 2015. Consequently, the award of benefits under § 1114(s)(1) moots the issue of entitlement to a total disability rating due to individual unemployability as of January 30, 2015. The issue of entitlement to a total disability rating due to individual unemployability remains, however, viable for the period prior to January 30, 2015. Therefore, since evidence of the Veteran's individual unemployability due to service connected disabilities was first presented during his February 2013 hearing, the claim for a total disability rating due to individual unemployability remains viable throughout the period from February 14, 2013, the date unemployability was raised during the hearing, to January 30, 2015, the date special monthly compensation under 38 U.S.C. § 1114(s)(1) was granted. The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Under the applicable criteria, a total disability rating due to individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 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. §§ 3.340, 3.341, 4.16. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). In the present case, the Veteran's overall disability percentage, along with his individual disability percentages, have fluctuated during the applicable appeal period. For the period from August 30, 2013 to August 10, 2014, and from September 3, 2014 to January 29, 2015 the ratings assigned his service connected disorders qualify him for schedular consideration of entitlement to a total rating for individual unemployability. During both periods the Veteran had service connected heart issues that precluded physical labor like he had previously performed. Until his heart surgery, the Veteran had been self-employed as a carpenter from 1984 to 2008. In 2008 the Veteran was awarded Social Security disability benefits. This determination was based on his heart surgery in 2008 and the ensuing complications of isometric heart disease that followed. He has been service connected for his heart problems since 2008. The Veteran is also service connected for post-traumatic stress disorder and this has caused him to avoid crowds or any interaction with people. In his 2013 hearing he described his post-traumatic stress disorder symptoms as interfering with his ability to interact with people or deal with crowds. The Veteran mentioned that he last worked in 2010 in a self-employed capacity, maintaining billboard signs for an advertisement company. He ceased this work due to his heart problems. The Veteran completed twelfth grade and has attended technical schools for both home inspection and equipment maintenance. He also held a commercial driver's license at some point in the past, but due to his heart problem he could not drive. In his hearing testimony he mentioned that his goal was to have jobs which were solitary because it helped and "anything I could do by myself would greater my life because I didn't have to be around other people". In reviewing the file, the evidence of record indicates that the Veteran from August 30, 2013 to August 10, 2014, and from September 3, 2014 to January 29, 2015 was not capable of obtaining or maintaining substantial gainful employment. As noted previously, the Veteran's post-traumatic stress disorder examinations revealed that the Veteran has anxiety, irritability, chronic sleep impairment, depressed mood, and difficulty in adapting to stressful circumstances, amongst other deficiencies. Given the Veteran's employment background which involved heavy manual labor, it is clear that his heart disorder prevented him from continuing any type of work of this kind. Moreover, since his employment background involved manual labor, even if the Veteran was capable of performing sedentary jobs, any skills he obtained in his previous manual positions were unlikely to transfer to a sedentary position. Thus, given the Veteran's educational and work background, and his heart and post-traumatic stress disorder symptoms, a sedentary position is not possible. Based on the above, the Board finds that the Veteran was unable to perform jobs of manual labor or sedentary employment due to his service-connected post-traumatic stress disorder and ischemic heart disease from August 30, 2013 to August 10, 2014, and from September 3, 2014 to January 29, 2015. As such, the Board finds these circumstances rendered the Veteran an unlikely candidate for most, if not all, jobs of a manual and sedentary nature. Accordingly, resolving reasonable doubt in his favor, entitlement to a total disability rating for individual unemployability, as it relates to the periods from August 30, 2013 to August 10, 2014, and from September 3, 2014 to January 29, 2015, is granted. ORDER Entitlement to a total disability rating based on individual unemployability, for the periods from August 30, 2013 to August 10, 2014 and September 3, 2014 to January 29, 2015, is granted subject to the laws and regulations governing monetary benefits. REMAND During the period from August 11, 2014 to September 2, 2014, the Veteran did not meet the schedular criteria for assignment of a total disability rating based on individual unemployability. When a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but does not meet the percentage requirements for a total rating for individual unemployability of 38 C.F.R. § 4.16 (a), the case may be referred to appropriate VA officials for consideration of assignment of a total rating for individual unemployability. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular rating in the first instance. See Thun v. Shinseki, 572 F.3d 1366 (2009). Although Thun only dealt with ratings under 38 C.F.R. § 3.321(b)(1), the analysis in those cases is analogous to a total disability due to individual unemployability ratings under 38 C.F.R. § 4.16(b) as well, in view of that section's similar requirement of referral to the Director, Compensation and Pension Service, in addition to Court precedents requiring consideration of 38 C.F.R. § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). That is, since the Board itself cannot assign an extraschedular rating in the first instance, it must adjudicate specifically whether to refer a case to the Director, Compensation and Pension Service, for an extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If the Director determines that an extraschedular evaluation is not warranted, then the Board has jurisdiction to adjudicate the claim of entitlement to a total disability rating due to individual unemployability claim on an extraschedular basis on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). Therefore, the issue of entitlement to a total rating for individual unemployability pursuant to 38 C.F.R. § 4.16 (b) should be referred to the Director of the Compensation and Pension Service for consideration. 38 C.F.R. § 4.16. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the Director of Compensation for consideration of whether a total disability due to individual unemployability is warranted pursuant to 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the claim to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs