Citation Nr: 1801488 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-31 041A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from November 4, 2010 to November 19, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. He died in February 2017. The appellant is the Veteran's surviving spouse, who is substituted as the appellant for purposes of adjudicating the issue on appeal. See 38 U.S.C. § 5121A (2012) (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the RO in in St. Petersburg, Florida, which denied a TDIU. This case was previously before the Board in June 2017 where the Board granted a TDIU for the period from November 19, 2012, and remanded the the issue of a TDIU for the period from November 4, 2010 to November 19, 2012 for referral to the VA Under Secretary for Benefits or the VA Director of the Compensation and Pension Service for adjudication of TDIU eligibility in accordance with 38 C.F.R. § 4.16(b) (2017). The the issue of a TDIU from November 4, 2010 to November 19, 2012 now returns to the Board after satisfactory completion of the ordered development. As such, the Board finds that there has been substantial compliance with the Board's remand order, and an additional remand to comply with the June 2017 directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (nothing that the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT For the period from November 4, 2010 to November 19, 2012, the service-connected disabilities prevented the Veteran from retaining (maintaining) substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, for the period from November 4, 2010 to November 19, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duites to Notify and Assist The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Board is granting a TDIU for the period from November 4, 2010 to November 19, 2012. As there remains no aspect of the appeal of TDIU for this period to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Entitlement to TDIU from November 4, 2010 to November 19, 2012 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The appellant seeks a TDIU for the period from November 4, 2010 (date of claim) to November 19, 2012, based on the Veteran's service-connected posttraumatic sress disorder (PTSD) rated as 50 percent disabling from June 17, 2008, diabetes mellitus rated as 20 percent disabling from December 10, 2010, coronary artery disease (CAD) rated as 10 percent disabling from February 1, 2003, and residuals of a cardiac surgery scar rated as noncompensable from October 21, 2002. Pursuant to the June 2017 Board remand, the issue was referred to the Director of Compensation and Pension Service for consideration of a rating under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. In April 2016, the Director of the VA Compensation Service adjudicated and denied a TDIU under 38 C.F.R. § 4.16(b). Because the appeal for TDIU for the period from November 4, 2010 to November 19, 2012 under section 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities shall be rated totally disabled. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). The appellant contends generally that the Veteran was unable to obtain or sustain any form of substantially gainful employment due to service-connected disabilities. A July 2012 notice of disagreement reflects that the Veteran wrote that he had been unemployed since 1998, and that he was unable to secure or follow substantially gainful employment due to the service-connected PTSD. The Veteran also wrote that the service-connected PTSD manifested as symptoms including anger and a "terrible temper." The Veteran also indicated that he had been married nine times, that the inability to sustain marital relationships was due to PTSD, and that he and the current spouse had been married and divorced three times. A January 2013 statement reflects that the Veteran wrote that both the service-connected PTSD and service-connected heart disability impacted the ability to work, even in a position of sedentary employment. After a review of all the lay and medical evidence, the Board finds that the evidence is in equipoise as to whether, for the rating period from November 4, 2010 to November 19, 2012, all the service-connected disabilities rendered the Veteran unable to maintain (follow) substantially gainful employment. Evidence weighing in favor of a finding of unemployability includes the Veteran's statements that he was unemployable due to the service-connected disabilities. An April 2012 statement reflects that the Veteran indicated that the inability to obtain employment was due to the service-connected PTSD, diabetes, and heart disabilities. The July 2012 notice of disagreement reflects that the Veteran wrote that the service-connected PTSD manifested as symptoms including anger and a "terrible temper." Additional evidence weighing in favor of a finding of unemployability includes a February 2011 VA ischemic heart disease examination report, which reflects that the VA examiner opined that both the service-connected heart disability and the service-connected diabetes impacted the ability to work. The February 2011 VA examiner reasoned that the heart disability and diabetes precluded physical labor due to a lack of stamina. Further, a June 2012 VA PTSD examination report reflects that the VA examiner opined that the service-connected PTSD manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Subsequently, a January 2015 VA PTSD examination report reflects that the VA examiner opined that the service-connected PTSD manifested as occupational and social impairment with reduced reliability and productivity, indicating that the PTSD symptomatology and impairment had worsened in severity since the June 2012 VA PTSD examination. Resolving reasonable doubt in the appellant's favor, considering the Veteran's functional limitations with respect to prolonged physical activity, as well as symptoms and impairment of the service-connected PTSD, the Board finds that the service-connected disabilities prevented the Veteran from performing the type of employment for which he was trained, including sedentary employment. While the record reflects the Veteran reported post-service employment in a casino and that he had completed one year of college, the test is not whether the Veteran would have been precluded from all types of employment but whether such employment was realistically within the physical and mental capabilities of the Veteran. In this case, given the Veteran's education, work experience, and functional impairment as a result of the service-connected disabilities, the Board finds that the Veteran was precluded from maintaining substantially gainful employment due to the service-connected disabilities; thus, a TDIU is warranted for the rating period from November 4, 2010 to November 19, 2012. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU for the period from November 4, 2010 to November 19, 2012 is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs