Citation Nr: 1800978 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 04-41 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to total disability due to individual unemployability (TDIU) on an extraschedular basis prior to October 16, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which, in pertinent part, denied the Veteran's claim for an increased rating for skin disability, previously characterized as tinea versicolor and tinea pedis. In June 2007, the Board informed the Veteran that the Veterans Law Judge who conducted his May 2005 hearing was no longer employed with the Board and offered him the opportunity to appear at a hearing before another Veterans Law Judge who would participate in the decision. In July 2007, he elected to have another Travel Board hearing at the RO. In October 2007, he testified before the undersigned; a transcript of that hearing is of record. In May 2006, January 2008, September 2010, September 2012, and October 2013 the matter was remanded for further development. In February 2015, the Board once again remanded the increased rating claim for a skin disability, but also determined that a TDIU claim had been raised by the record and remanded this issue for additional development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters were remanded again in December 2015. In September 2016, the DRO granted the Veteran entitlement to a TDIU, effective November 6, 2013, the date the Veteran filed his TDIU claim. As a TDIU was not granted throughout the appeal period for the pending increased rating claim, the DRO's decision resulted in only a partial grant of benefits. Therefore, the Veteran's entitlement to a TDIU prior to November 6, 2013, came before the Board in April 2017. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an April 2017 rating decision, the Board denied entitlement to a rating in excess of 10 percent for a skin disability. This matter is no longer on appeal. In the same decision, the Board determined that the Veteran met the criteria for an award of TDIU for the appeal period from October 16, 2012 to November 5, 2013. After explaining that the Veteran did not meet the threshold percentage standards for a TDIU set forth at 38 C.F.R. § 4.16 (a) for the appeal period prior to October 16, 2012, the Board remanded the issue of a TDIU for the appeal period prior to October 16, 2012 pursuant to 38 C.F.R. § 4.16 (b) on an extraschedular basis. In August 2017, the Director, Compensation Service reviewed the evidence of record and concluded that a TDIU on an extraschedular basis was not warranted for the appeal period prior to October 16, 2012. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's service connected disabilities rendered him incapable of securing and following substantially gainful employment for the appeal period from June 5, 2012 and prior to October 16, 2012. CONCLUSION OF LAW For the appeal period from June 5, 2012 and prior to October 16, 2012, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b), 4.18, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran submitted a claim for TDIU in November 2013. The claim has been construed as part and parcel of the previously addressed increased rating claim that was filed in April 2004. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In his claim, he reported that his most recent employment background was as a handicap bus driver for 8 years. The Veteran indicated that he became unemployed in June 2011 and it was due to his service connected prostatitis, headaches, and hemorrhoids. He indicated that he completed one year of college with no other education or training. The evidence in support of the Veteran's claim include records from VA and private treatment records, including a VA treatment record dated December 2014 that indicates he could no longer be employed as a commercial bus driver due to frequent urination. In addition, on August 2014 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran's employer reported that the Veteran's employment as a bus driver ended on June 4, 2012 due to health issues caused by his prostate condition that required him to frequently stop on the bus route to use the bathroom along with associated pain. An April 2017 Board decision granted TDIU effective October 16, 2012, the date the Veteran's combined evaluations satisfied the requirements of 38 C.F.R. § 4.16(a). The Board remanded the question of extraschedular unemployability prior to October 16, 2012 as the Veteran did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16 prior to that date. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16 (a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16 (b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16 (b) in the first instance without initially referring the claim to the Director of VA's Compensation and Pension Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). In a June 2017 Memorandum to the Director of Compensation Service, the Appeals Resource Center recommended that the issue of entitlement to TDIU on an extraschedular basis be granted from June 5, 2012, the day following the last day worked. On a Social and Industrial Survey dated in July 2016, the VA examiner reported that the Veteran had to quit his job in June 2012 as a special needs bus driver due to his frequent need to stop to use the bathroom on bus route. The examiner opined that the Veteran was industrially impaired. The examiner also referred to July 2016 VA skin disease examinations in which that examiner determined that the Veteran's skin condition impacted the Veteran's ability to work and that it was the residual effects of his service-connected disabilities that contributed to his unemployability status. The examiner noted that the Veteran accepted his reality that he will continue to have migraine headaches, frequent trips to the bathroom, and constant episodes of itching. In August 2017, the Director determined that based on the totality of evidence of record, extra-schedular entitlement to TDIU is not shown, due to the tinea versicolor, prostatitis, kidney stones, migraines, pseudofolliculitis, chest pain, tonsillitis, and hemorrhoids, nor was there was any collective impact or that the rating schedule is shown to be inadequate. The Director added that in 2010 VA examiner indicated that tinea versicolor, tinea pedis, and prostatitis/benign prostatic hypertrophy would not interfere with either physical or sedentary occupational activity Although the Director found that an extraschedular TDIU was not warranted, the Board may make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). Therefore, the Board will now independently consider whether the Veteran is entitled to an extraschedular TDIU for the period prior to October 16, 2012. In weighing the lay and medical evidence of record, as well as the Veteran's education and work history in the field of bus driving, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in another profession or field. The medical evidence of record indicates that his physical health, particularly his frequent need to urinate, prevents him from being able to perform work that requires prolonged periods of driving. However, given the Veteran's brief college education and work history performing bus driving, the Board finds that it is unlikely that the Veteran is capable of obtaining sedentary employment, as he has neither the qualifications nor work experience for a position such as an office job or other light employment. As it has already been conceded that the veteran's service connected urinary frequency participated with other service connected disabilities to render the veteran unemployable, it is reasonable to conclude the symptoms were present on June 5, 2012, the day following when the Veteran was last able to work. Based on the foregoing, and resolving remaining reasonable doubt in the Veteran's favor, the Board finds that that it is reasonably shown that by virtue of his service connected prostatitis, the Veteran is precluded from participating in any substantially gainful employment consistent with his education/training and experience, and that a TDIU rating is warranted from June 5, 2012. ORDER From June 5, 2012 and prior to October 16, 2012, entitlement to a TDIU on an extraschedular basis is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs