Citation Nr: 1804253	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  16-15 635A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 7, 2016, on an extraschedular basis.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel



INTRODUCTION

The Veteran had active military service from March 1943 to December 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

This case was before the Board in June 2017, where it determined that the issue of entitlement to a TDIU was raised by the record as a component of the claim for increase then on appeal.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Ultimately, the Board, in pertinent part, granted a TDIU, effective April 7, 2016.  However, as the Veteran did not meet the schedular criteria for a TDIU prior to that date, the Board remanded the claim to the Agency of Original Jurisdiction for further development.  Upon completion of such development, the AOJ denied the claim, as reflected in the October 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review.  The Board notes that there was substantial compliance with its June 2017 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The preponderance of the evidence does not reflect that the Veteran has been unable to engage in substantially gainful employment due to his service-connected PTSD prior to April 7, 2016.





CONCLUSION OF LAW

The criteria for a TDIU, prior to April 7, 2016, on an extraschedular basis have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate 
the claim.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

A TDIU claim is a type of increased-rating claim.  See Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim).  For increased-rating claims, so including for a claim for a TDIU, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to:  (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that Veterans Claims Assistance Act (VCAA) notice need not be veteran specific, or refer to the effect of the disability on "daily life").

Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In a February 2014 letter, the Veteran was informed of what evidence was required to substantiate his claim, and of his and VA's respective responsibilities in obtaining evidence.  Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, he was afforded ample notice of the applicable law and requirements for substantiating his claim for a TDIU in the October 2017 SSOC.  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Thus, the Board finds that VA's duty to notify is satisfied.

Regarding the duty to assist, the Board sees that the claims file contains relevant post-service medical records and the Veteran's written statements.  Neither the Veteran nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to this claim that is obtainable and has not been obtained.  Furthermore, he was afforded VA compensation examinations assessing and reassessing the severity of his service-connected PTSD, including its functional impact to, in turn, assist the Board in determining whether he is unemployable on account of his PTSD.  Opinions were provided in response to those examinations and others in support of his claim.  Certainly, these examination reports and the other medical records in the file, particularly when considered collectively, so in the aggregate, provide the information needed to at least partly decide this appeal in his favor.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  TDIU prior to April 7, 2016

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met.  Id.  But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities.  In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

As it now stands, service connection has been established solely for PTSD at 30 percent disabling from September 10, 2013, 50 percent from June 19, 2014, and 70 percent from April 7, 2016.  The Veteran was awarded a TDIU as of April 7, 2016.  However, as this is his only service-connected disability, the Veteran has not met the schedular criteria for a TDIU prior to this date, because he does not have a single disability rated at 60 percent disabling or a combined rating of 70 percent.  Nonetheless, as noted above, the Veteran is still potentially eligible to receive a TDIU, albeit on a special extraschedular basis pursuant to 38 C.F.R. § 4.16(b), if it is shown that he is indeed unemployable due to his service-connected PTSD.

Again, the Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without ensuring that the claim was referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b).  Bowling v. Principi, 15 Vet. App. 1 (2001).  Accordingly, in August 2017, the Veteran's claim was forwarded to VA's Director of C&P for extraschedular consideration.  The Director determined that an earlier effective date for a TDIU on an extraschedular basis was not warranted.

The Board may now review the decision of VA's Director of C&P with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination on this matter.  See Anderson v. Shinseki, 22 Vet. App. 423 (2008).

After review of the evidence of record, the Board finds that an extraschedular TDIU, prior to April 7, 2016, is not warranted, because, prior to the April 2016 VA examination, there is nothing to suggest that the Veteran's PTSD created marked interference with employment or frequent periods of hospitalization or any other exceptional factors that would render the application of the regular schedular rating standards impractical prior to that date.  While the record shows that he has a 7th grade education, the Veteran was able to work in a full-time capacity for over 30 years and last worked as an independent contractor in sales.  The competent medical clinicians who evaluated the Veteran for his PTSD have consistently made findings against his PSTD precluding substantially gainful employment.  Here, a thorough review of the record reflects that while the Veteran's service-connected PTSD would result in a degree of occupational impairment, he has not been found to have a total occupational impairment, so as to say that he has not been found to be unemployable solely due to his service-connected PTSD.

As the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected PTSD prior to April 7, 2016, the benefit of the doubt doctrine is not applicable, and the claim is denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a TDIU, prior to April 7, 2016, on an extraschedular basis is denied.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs