Citation Nr: 1802899 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-08 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a total disability rating due to individual unemployability due to service connected disabilities (TDIU) from October 28, 2016. 2. Entitlement to TDIU on an extraschedular basis prior to October 28, 2016. 2. Entitlement to a home adaptation grant or specially adapted housing. REPRESENTATION Veteran represented by: Joel Ban, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from August 1997 to December 1997. These matters come to the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history. In a January 2011 rating decision, the RO denied entitlement to a right shoulder disability, cervical spine disability, and specially adapted housing. A notice of disagreement was filed in April 2011, a statement of the case was issued in February 2012, and a substantive appeal was received in April 2012. In a July 2012 rating decision, the RO granted entitlement to service connection for right shoulder disability, status post rotator cuff tear with acromioclavicular separation, assigning a 10 percent disability rating, effective November 17, 2010. In September 2012, the Veteran filed a notice of disagreement with the disability rating assigned. A statement of the case was issued in March 2013 and a substantive appeal was received in April 2013. In an August 2013 rating decision, the RO assigned a 20 percent disability rating, effective June 24, 2013. In a September 2013 rating decision, the RO assigned the 20 percent disability rating effective May 1, 2013. The Veteran had earlier indicated that he was not seeking a rating in excess of 20 percent; however, from hearing testimony in August 2015 it appeared he no longer wished to limit the scope of his rating, and the Board assumed he was seeking the maximum schedular rating. In an April 2014 rating decision, the RO denied entitlement to service connection for a left shoulder disability, lumbar/thoracic spine disability, acquired psychiatric disability, and a TDIU. A notice of disagreement was filed in May 2014, a statement of the case was issued in September 2014, and a substantive appeal was received in September 2014. The Veteran testified at a Board hearing in August 2015; the transcript is of record. These matters were previously before the Board in October 2015, at which time they were remanded for additional development. Subsequently, a June 2016 rating decision granted entitlement to service connection for a major depressive disorder with anxious distress, and assigned a 30 percent evaluation effective from November 6, 2012. A notice of disagreement with the initial evaluation was received in June 2016, and a statement of the case was issued in August 2016. The Veteran submitted a substantive appeal in August 2016 and as the matter was certified to the Board in April 2017, it was then on appeal. During the course of the appeal, the initial rating for the Veteran's major depressive disorder with anxious distress was increased to 50 percent, effective October 28, 2016. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for an increased initial rating for the Veteran's major depressive disorder remained on appeal. In a July 2017 decision, the Board granted service connection for a thoracolumbar spine disability and a cervical spine disability. The Board also denied entitlement to service connection for a left shoulder disability; denied increased ratings for the Veteran's major depressive disorder in excess of 30 percent prior to October 28, 2016 and in excess of 50 percent from that date; and denied an initial rating for the Veteran's right shoulder disability in excess of 10 percent prior to May 1, 2013 and in excess of 20 percent from that date. These matters are final and will not be addressed further at this time. The July 2017 Board decision also remanded the claims for entitlement to home adaptation and specially adapted housing, and entitlement to TDIU for additional development. They have now been returned for further appellate review. The issue of entitlement to TDIU on an extraschedular basis prior to October 28, 2016 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service connected disabilities are major depressive disorder, evaluated as 30 percent disabling from November 6, 2012 and 50 percent disabling from October 28, 2016; a right shoulder disability, evaluated as 10 percent disabling from November 17, 2010 and 20 percent disabling from May 1, 2013; osteoarthritis of the cervical spine, evaluated as 10 percent disabling from November 17, 2010; and osteoarthritis of the thoracolumbar spine, evaluated as 10 percent disabling from July 15, 2013. His combined evaluation has been 70 percent from October 28, 2016 but did not exceed 60 percent prior to that date. 2. Medical opinion states that the Veteran has been unable to obtain or maintain gainful employment due to his service connected disabilities since 2013. 3. The preponderance of the competent medical and other evidence of record fails to reflect that the Veteran has loss or loss of use of a lower extremity such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; the loss or loss of use of any upper extremity that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; the loss or loss of use of both upper extremities such as to preclude the use of arms at or above the elbows; blindness in either eye with visual acuity of 5/200 or less; residuals of organic disease or injury; ALS; burns; or the anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. The criteria for an award of TDIU have been met as of October 28, 2016; the criteria for a schedular award of TDIU prior to October 28, 2016 have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for establishing eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107 (2014); 38 C.F.R. §§ 3.809, 3.809a (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The claim for TDIU arises from disagreement with the initial evaluations assigned the Veteran's disabilities following the grant of service connection. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court has held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the claims for a home adaptation grant or specially adapted housing, it does not appear that the Veteran has been afforded a VCAA letter specific to these issues. However, neither the Veteran nor his representative argues that the Veteran has been prejudiced by this omission and no additional development is deemed necessary here. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The duty to assist has also been met. VA treatment records have been obtained, and the Veteran has submitted private medical records. The Veteran provided pertinent testimony at his hearing. He has undergone recent VA examinations of his service connected disabilities. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. TDIU The Veteran contends that his service connected disabilities preclude him from gainful employment. He reports that he quit his job as a restaurant manager because the pain from his service connected shoulder disability prevented him from performing all the duties associated with this position. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). According to the applicable laws and regulations, a total rating for compensation 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 disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purposes of determining whether or not there is one 60 percent disability or one 40 percent disability, disabilities that affect a single body system, e.g. orthopedic, digestive, respiratory, will be considered as one disability. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16 (b). The Veteran's service connected disabilities are major depressive disorder, evaluated as 30 percent disabling from November 6, 2012 and 50 percent disabling from October 28, 2016; a right shoulder disability, evaluated as 10 percent disabling from November 17, 2010 and 20 percent disabling from May 1, 2013; osteoarthritis of the cervical spine, evaluated as 10 percent disabling from November 17, 2010; and osteoarthritis of the thoracolumbar spine, evaluated as 10 percent disabling from July 15, 2013. His combined evaluations have been 20 percent from November 17, 2010; 40 percent from November 6, 2012; 50 percent from May 1, 2013; 60 percent from July 15, 2013; and 70 percent from October 28, 2016. The Board finds that the criteria for an award of TDIU have been met as of October 28, 2016. The record shows that October 28, 2016 is the day that the Veteran first met the scheduler criteria for consideration for TDIU. 7/17/2017 Rating Decision - Codesheet, p. 1. The record also includes a September 2017 assessment by a private vocational expert. This assessment noted the Veteran's four service connected disabilities, reviewed the medical record with a focus on his functional and occupational impairments, discussed his work history and education, and conducted a telephone interview with him. The examiner concluded that it was at least as likely as not that the Veteran's service connected disabilities resulted in his inability to attend to basic work functions, and resulted in him being unable to secure and follow substantial gainful employment since leaving his job in 2013. 9/14/2017 Correspondence, pp. 2, 9. There are no opinions to the contrary that have assessed the combined impact of the Veteran's service connected disabilities. An April 2016 VA examination states the Veteran's reported loss of forceful use of the right shoulder would interfere with a number of potential work activities, but was expected to improve. 4/28/2016 C&P Exam, pp. 1, 5. However, an October 2012 psychological evaluation conducted in conjunction with the Veteran's request for vocational rehabilitation includes the assessment of the examiner that it would be best if the Veteran were to address his depression and anxiety and get these better under control before trying a new job or job training. This assessment supports the conclusion of the September 2017 private vocational expert. 3/27/2014 Medical Treatment Record - Non-Government Facility, p. 6. The Board concludes that the evidence shows the Veteran was unable to obtain or maintain gainful employment on October 28, 2016 at the time he first met the schedular criteria for consideration of TDIU. The matter of entitlement to TDIU prior to October 28, 2016 will be addressed in the remand section at the end of this decision. Special Home Adaptation/Specially Adapted Housing The Veteran submitted his claims for entitlement to specially adapted housing in December 2010. Under the version of 38 C.F.R. § 3.809 that was in effect at that time, eligibility for assistance in acquiring specially adapted housing could be granted if a claimant is entitled to compensation for permanent and total disability due to: (1) the loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 C.F.R. §3.809 (b) (2011). Under the version of 38 C.F.R. § 3.809(d), which became effective on December 3, 2013, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101 (a) may also be granted if the Veteran has service-connected ALS rated 100 percent disabling under 38 C.F.R. § 4.124a, Code 8017. 38 C.F.R. § 3.809 (d) (2016). Under all applicable versions of 38 C.F.R. § 3.809, the phrase "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). Under the version of 38 C.F.R. § 3.809a in effect when the Veteran submitted his claim, if entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for a permanent and total service-connected disability which must (1) include the anatomical loss or loss of use of both hands; or (2) be due to (i) blindness in both eyes with 5/200 visual acuity or less, or (ii) deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or (iii) full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (iv) residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and COPD). 38 U.S.C. § 2101 (b); 38 C.F.R. § 3.809a (b) (2011). Under the version of 38 C.F.R. § 3.809a which became effective on September 12, 2014, if entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he is service connected for a disability that (1) VA has rated as permanently and totally disabling, and which (i) includes the anatomical loss or loss of use of both hands; (ii) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (iii) is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (iv) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). Additionally, a Veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for a service-connected disability [which need not be rated as permanently and totally disabling] which is due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a (b) (2017). A review of the evidence shows that the Veteran does not meet any of the criteria that would qualify him for either specially adapted housing or a special home adaptation grant. As previously noted, the Veteran's service connected disabilities include major depressive disorder, a right shoulder disability, arthritis of the cervical spine, and arthritis of the thoracolumbar spine. There is no evidence that the Veteran's right shoulder disability has resulted in loss of use of his right arm, and an April 2016 VA examination specifically found that there is no such loss of use. 4/28/2016 C&P Exam, pp. 1, 12. Although the April 2016 VA examination of the back states that the Veteran uses a back brace and a cane on days when his medication fails to help with his back pain, this examination also states that this back disability does not result in loss of use of any extremity. 4/28/2016 C&P Exam, pp. 1, 6. He is not service connected for any disability of the lower extremities, is not service connected for an eye disability nor blind, does not have burn injuries or inhalation injuries, and is not service connected for ALS. In summary, the Veteran does not meet the criteria for either specially adapted housing or a special home adaptation grant under any version of the regulations, and entitlement to the benefit sought is not warranted. ORDER Entitlement to a total disability rating due to individual unemployability due to service connected disabilities from October 26, 2016 is granted. Entitlement to specially adapted housing; or a special home adaptation grant is denied. REMAND The September 2017 vocational assessment opined that the Veteran has been unemployable from 2013. As noted, the Veteran did not meet the scheduler criteria for consideration of TDIU until October 28, 2016. It is the established policy of the 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. The Board is unable to grant extraschedular benefits in the first instance. In cases where the scheduler criteria are not met, the matter must first be referred to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b) (2017). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for TDIU prior to October 28, 2016 to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order The Veteran 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs